Preamble

The House met at half-past Two o'clock

PRAYERS

[MR. SPEAKERin the Chair]

DEATH OF MEMBERS

Mr. Speaker: I regret to have to inform the House of the deaths of Jocelyn Benedict Laurence Cadbury, esquire, Member for Birmingham, Northfield; Harry George Lamborn, esquire, Member for Peckham; and Francis McElhone, esquire, Member for Glasgow, Queen's Park. I desire, on behalf of the House, to express our sense of the loss we have sustained and our sympathy with the relatives of the hon. Members.

WRITS ISSUED DURING THE ADJOURNMENT

Mr. Speaker: acquainted t he House that he had issued, during the Adjournment, warrants for new Writs for Gower, in the room of Dr. Ifor Davies, deceased; Peckham, in the room of Harry George Lamborn, esquire, deceased; and Birmingham, Northfield, in the room of Jocelyn Benedict Laurence Cadbury, esquire, deceased.

Oral Answers to Questions — WALES

Unemployed Persons

Mr. Ray Powell: asked the Secretary of State for Wales what is the current total number of unemployed

persons registered in (a) the Ogmore constituency, (b) the Mid-Glamorgan area and (c) Wales; and how these figures have increased or decreased since 8 July.

The Secretary of State for Wales (Mr. Nicholas Edwards): On 9 September 1982 the figures were 6,496, 36,164 and 185,611, respectively, an increase of 147, 1,473 and 10,319 since 8 July 1982.

Mr. Powell: Is not the Secretary of State disgusted with his Government for increasing unemployment in Wales? Is he aware that in Ogmore there are only 170 vacancies for the 7,500 unemployed? While Parliament has had its feet up for the past two and a half months, unemployment in my area has escalated. Factories are closing—

Mr. Speaker: Order. The hon. Gentleman must ask a question. I appeal to hon. Members to ask only one supplementary question, which will enable us to deal with all Welsh questions.

Mr. Powell: Will the Secretary of State ensure that a new mine is provided at Margam to alleviate unemployment in that area?

Mr. Edwards: I deplore the fact that during the period in question unemployment has risen throughout the industrial world. The improvement in Britain's inflation rate and our improved competitiveness give hope for the future. I note that during the recess the Opposition put forward few constructive suggestions.

Mr. Hooson: Can my right hon. Friend estimate the effect that the nationalisation of 25 top companies, as envisaged in the Labour programme for 1982, will have on unemployment in Wales?

Mr. Edwards: It is clear that our nationalised industries are problem centres for both unemployment and financial matters. There is little optimism on that front.

Mr. Coleman: Is the Secretary of State aware that unemployment in Wales has reached an all-time record and is a cause of concern for everyone in Wales? Is he aware that the Lord Bishop of Llandaff has written to hon. Members advocating an increase in unemployment benefit? Will he support that request in the Cabinet?

Mr. Edwards: We all share the concern about unemployment, which is why the Government are spending a substantial sum—about £1·7 billion—on measures to alleviate the problem.

Severn Barrage

Mr. Colvin: asked the Secretary of State for Wales what representations he has received from commercial and community interests in Wales in favour of the Severn barrage.

The Under-Secretary of State for Wales (Mr. Michael Roberts): In total we have received nine representations, of which six directly expressed support for further studies.

Mr. Colvin: Is my hon. Friend aware that he ought to be doing his best to persuade his colleagues to decide in favour of the Bondi recommendations, not only because of the energy producing potential of the barrage, but because it has been reported that its construction could generate as many as 50,000 new jobs? If he does that, there will always be a welcome for him on the hillsides and in the valleys of Bristol.

Mr. Roberts: The main question is whether there is an economic case for the Severn barrage on electricity generation grounds. My right hon. Friends the Secretaries of State for Wales and for Energy are discussing that at present.

Mr. Roy Hughes: Is not the Government's inertia over this imaginative scheme appalling, bearing in mind the support that it has been given by local authorities, such as Newport borough and Gwent county councils? Cannot the Minister appreciate that the barrage would produce many thousands of jobs in the construction industry and help to relieve unemployment in the area as well as bringing lasting benefits to future generations?

Mr. Roberts: There is no question of any inertia, nor was that suggested by the Newport council when it met us. It was satisfied with that meeting. We must study the whole matter closely, including its impact on the coal industry.

Council Houses

Mr. Knox: asked the Secretary of State for Wales how many council houses have been sold to sitting tenants in Wales since May 1979.

The Under-Secretary of State for Wales (Mr. Wyn Roberts): In the period May 1979 to June 1982, 18,247 council dwellings had been sold to sitting tenants in Wales. In addition, 846 dwellings had been sold by Cwmbran development corporation and the Development Board for Rural Wales.

Mr. Knox: Is my hon. Friend satisfied with the general rate of progress on the sale of council houses that has been achieved by Welsh local authorities?

Mr. Roberts: Steady overall progress is being made. In April my right hon. Friend asked all local authorities to ensure that 60 per cent. of all applications received before 31 December 1981 were dealt with by 30 September 1982. Present indications are that most authorities have either achieved that target or come very near to doing so. One or two local authorities may still not be progressing as quickly as they ought.

Mr. Anderson: Does the Minister share our anger that, yet again, as measured by the Order Paper, at a time of mounting homelessness and a virtual slump in both the public and private sectors, Conservative Members seem to be concerned solely with the sale of council houses, which will not generate one extra dwelling?

Mr. Roberts: The hon. Gentleman is quite mistaken in his view of the sale of council houses. In fact, it has resulted in a bonanza for the local authorities. The trouble is that they are applying that bonanza not to housing but to reducing debt.

Sir Anthony Meyer: Is my hon. Friend aware that his optimism that the sale of council houses is proceeding apace in Wales is not always shared by those directly involved? Is he satisfied that both the civil servants in his own Department and local government employees are bending their wills to carry out the law of the land, which confers an undoubted right on many private individuals?

Mr. Roberts: I certainly understand the position of tenants who have applied to buy but who, as yet, have not achieved completion of sale. We in the Welsh Office are doing all that we can to harry those laggard authorities that are not selling as quickly as we wish them to sell.

Mr. Coleman: What is the size of the current council house waiting list in Wales?

Mr. Roberts: That is a very different question from the one that I am answering, but the hon. Gentleman should understand that the sale of a council house to its sitting tenant does not reduce the housing stock.

Mr. D. E. Thomas: If the Minister is so proud of the Government's housing record, how does he explain his disappearance from the recent Welsh housing conference at Llandrindod before answering any questions from the local authority representatives?

Mr. Roberts: When I accepted the invitation I made it quite clear to the Council for the Principality that it was an acceptance only of the invitation to speak. I had another engagement, which I had to attend.

Job Creation

Mr. Geraint Howells: asked the Secretary of State for Wales if he is satisfied with the present measures being taken to tackle unemployment in Wales.

Mr. Nicholas Edwards: I will not be satisfied until the measures taken to improve the economy have led to a substantial fall in the numbers unemployed in Wales.

Mr. Howells: Will the Secretary of State predict whether unemployment in Wales will be higher or lower in 12 months' time? If it is higher, who will he hold responsible?

Mr. Edwards: I never make predictions about unemployment.

Sir Anthony Meyer: As no positive proposals to reduce unemployment have come from the Liberal Party, and as the Social Democrats have now had the principal platform of their unemployment policy knocked away by their own conference, is it not time that the Conservative Party upstaged them by taking ideas for voluntary early retirement a great deal further?

Mr. Edwards: We must consider all ideas that will help to ameliorate this serious problem. My hon. Friend


knows that at present massive measures are being taken to deal with those who are out of work, but far more important is the improvement in the rate of inflation and incompetitiveness which will create permanent jobs for the future.

Mr. Wigley: On what possible basis does the Secretary of State believe the present measures will reduce the appalling unemployment in Wales?

Mr. Edwards: I had good evidence that the measures are beginning to work from a major industrial company in north Wales only last week. Hotpoint told me that it is now disposing of its washing machines as fast as it can make them because the fall in interest and mortgage rates combined with the new hire purchase measures have, in its words, produced a mini boom in this sector. If that is beginning to happen, it is encouraging evidence for the future.

Unemployment Statistics

Mr. loan Evans: asked the Secretary of State for Wales what are the latest figures of the number of people who are unemployed in Wales, Mid-Glamorgan and Aberdare; and how many of these have been unemployed for more than two years and one year, respectively.

Mr. Nicholas Edwards: In July 1982, the latest date for which a duration analysis of the unemployed is available, unemployment totalled 175,292, 34,691, and 4,055, respectively. Of these, 24,412, 5,099, and 656 had been unemployed for more than two years and 62,301, 12,123 and 1,454 had been unemployed for more than one year.

Mr. Evans: Does the right hon. Gentleman realise that the people of Wales believe that some of the Government's measures have led to the current level of unemployment in Wales? In view of the higher level of long-term unemployment, will the right hon. Gentleman look again at the Government's policy of removing special development and intermediate area status from many localities where unemployment has more than doubled since he took office as Secretary of State?

Mr. Edwards: If we are to have an effective regional policy, it is important that it should be selective rather than indiscriminately spread throughout the United Kingdom.

Mr. Marlow: As our trade deficit in manufactures with the EEC over the past six months, according to the latest Department of Trade figures, has been running at an annual rate in excess of £5,000 million, is it fair to say that Welsh jobs are now being taken by the French and the Germans? As productivity increases and lower wages may increase the value of sterling yet further, how will the Government ensure that the Welsh, like the rest of the United Kingdom, get some of their jobs back?

Mr. Edwards: During the recess I visited a large number of industrial companies in Wales—in some cases with their headquarters in North America—which export more than two-thirds of their goods to the Common Market and which would not be contemplating new investment in those factories if we were to leave the Common Market.

Mr. Maclennan: As one Celt to another, will the Secretary of State accept the gratitude which the Social Democrats felt to the people of Cardiff for extending such

a warm welcome to them and for the insight into the unemployment problems which the Welsh face under the Government of which he is a member?

Mr. Skinner: Whose side is the hon. Gentleman on?

Mr. Edwards: Some hon. Members thought that it was a slightly over-generous welcome to give the Social Democratic Party a hall which could seat 2,00() people when there were only 200 or 300 people there.

Mr. Barry Jones: asked the Secretary of State for Wales what is the increase in the numbers of people in Wales and Clwyd who have been unemployed since May 1979; if he will express these figures as a percentage; and if he will make a statement.

Mr. Nicholas Edwards: Between May 1979 and September 1982 unemployment increased by 102,587 and 13,613, respectively, or by 123·6 per cent. and 117·4 per cent.

Mr. Jones: Is our Welsh steel industry safe from new job losses? Given the state of emergency in the steel industry, what action will the Government take regarding energy costs and ':he need to stop the flood of subsidised steel imports?
Has the right hon. Gentleman any news of the proposed Finnish pulp paper mill that is supposed to be located on Deeside?

Mr. Edwards: The central problem facing the steel industry is not energy costs but world over-supply and the problems between the United States and the European Community. Those are matters for detailed discussion and negotiation.
I have no further news on the project to which the hon. Gentleman referred.

Mr. Grist: Does my right hon. Friend agree that the result of acceding to the demands of the National Union of Mineworkers would be the most incredible increase in electricity and other fuel costs to British industry and a serious further erosion of job opportunities in Britian?

Mr. Edwards: I hope that members of the NUM will consider the impact of their actions on the rest of industry and jobs. There is no doubt that one of the problems affecting British energy prices is the high cost of coal.

Whiteheads Steel Works, Newport

Mr. Roy Hughes: asked the Secretary of State for Wales if he has had discussions with the British Steel Corporation on the future of the Whiteheads steelworks, Newport, Gwent; and whether he will make a statement.

Mr. Nicholas Edwards: My hon. Friend the Under-Secretary of State for Wales visited the plant in September to meet the management and work force and to hear their views. I keep in continual touch with the British Steel Corporation and my right hon. Friend the Secretary of State for Industry about the corporation's affairs.

Mr. Hughes: Does the Secretary of State appreciate that this excellent and efficient works is and has been for a long time an integral part of the economy of Gwent? Does he further appreciate that it is closely linked to the Llanwern works, which itself is under threat despite all the splendid efforts that have been made there? As the


representative for Wales in the Cabinet, will he ensure that the voice of Wales is heard there and that those works are not allowed to close?

Mr. Edwards: I appreciate all those points, and I assure the hon. Gentleman that the voice of Wales will be heard on those issues in the Cabinet.

Mr. Coleman: Does the right hon. Gentleman agree that already a great sacrifice of steel workers' jobs in Wales has taken place as a means of securing the manning levels and efficiency that now obtain in the British steel industry? Has not the time now come when his job, and the jobs of his ministerial colleagues with responsibilities for Wales, should be put on the line to stop further closures in the Welsh steel industry? Will he show us his intention to fight this matter in the Cabinet or to resign?

Mr. Edwards: I assure the hon. Gentleman that, whatever else I do, I should not discuss any plans for my resignation with him before taking a decision on that matter.

Unemployment Statistics

Mr. Anderson: asked the Secretary of State for Wales if he will give the percentages of male unemployment for Wales, West Glamorgan and Swansea at the latest available date and in May 1979.

Mr. Nicholas Edwards: On 9 September 1982, 19·9 per cent., 18·9 per cent. and 20·5 per cent., respectively, and in May 1979, 8·5 per cent., 7·4 per cent. and 8·3 per cent.

Mr. Anderson: Do not those appalling figures, during the period that the Secretary of State has been in office, show the deterioration and destruction of much of our manufacturing base in West Glamorgan and Swansea? Does the right hon. Gentleman accept any responsibility for that massive decline?

Mr. Edwards: We can at least take one crumb of comfort from this depressing situation. Although Wales has borne a share of the steel closures, and although it has always suffered when unemployment has been high throughout the United Kingdom, on this occasion unemployment has not increased anything like as fast in Wales as it has in the United Kingdom as a whole.

Rate Support Grant

Sir Anthony Meyer: asked the Secretary of State for Wales what representations he has received from local authorities in Wales regarding the level of rate support grant for the coming financial year.

Mr. Nicholas Edwards: I shall be discussing the Welsh local authority associations' representations with them at the Welsh Consultative Council on local government finance meeting on Wednesday.

Sir Anthony Meyer: In those discussions, will my right hon. Friend take every opportunity to point out to the local authorities that the Government's even greater than expected success in bringing down the level of inflation gives them no pretext whatever for unwarranted increases in their projected expenditure, but, on the contrary, imposes an obligation upon them to contribute to the process of reducing inflation by keeping their costs below that level, if possible?

Mr. Edwards: I shall point that out. In addition, I shall point out to the local authorities that the basis upon which they have been making their planning assumptions so far now looks to be on the high side. It now appears that inflation may be a good deal lower than they at first thought.

Dr. Roger Thomas: In the light of the Government's emphasis on community care through local authority social services, may we expect such expenditure to be defended by Ministers more rigorously than in the past?

Mr. Edwards: The hon. Gentleman should be aware that expenditure allocations made by local authorities are matters over which I have no direct control. They have the choice. However, I made it clear to the local authorities that we think that these are important areas of responsibility.

Mr. Wigley: Is the Secretary of State aware of the great fear in local authorities in Wales that a reduction in the rate support grant from 72½p in the pound to 70p in the pound would mean a rate increase of 11p? Will he make it clear to the people of Wales that if a rate increase of 11p is necessary for that reason, it is because of the Government's action in cutting back support, not because of any local authority profligacy?

Mr. Edwards: I do not accept the figures that have been presented. The Government believe that if local authorities proceed on the basis that was set out in my RSG statement there is no reason why we should have substantial rate increases in the coming year on the scale that we have had in recent years.

Mr. Hooson: When my right hon. Friend discusses the rate support grant with local authorities, will he ensure that a much greater allowance is made this year for the sparsity factor that affects rural counties?

Mr. Edwards: My hon. Friend will be aware that we have detailed discussions with the local authority associations about the formulae that are used. This topic has been looked at frequently in the past, and I have no doubt that it will be looked at again on many occasions.

Council and Housing Association Properties

Mr. Grist: asked the Secretary of State for Wales how many council and housing association houses and flats have been sold to their occupying tenants in(a)Wales and(b)Cardiff; and how many have been applied for, under the right-to-buy provisions of the Housing Act 1980.

Mr. Wyn Roberts: At 30 June 1982, 15,308 council dwellings—including 83 flats—and one housing association dwelling had been sold in Wales. In Cardiff, 783 houses but no flats and one housing association dwelling have been sold.

Mr. Grist: In view of the falling mortgage rate, does my hon. Friend agree that this is an excellent time for people to start to buy their properties? Is he satisfied with the non-sale of flats by Cardiff city council? Does he intend to take any powers under the 1980 Act to end this state of affairs?

Mr. Roberts: I agree with my hon. Friend's first point.
I am generally dissatisfied with the progress that Cardiff and other local authorities have so far made on the sale of flats. There has been ample time to formulate appropriate


levels of service charges, which has been the main reason given for the delay. I expect Cardiff city council, and all other councils that have been dilatory in this respect, to make offers without further delay to those qualified tenants who wish to buy the flats that they occupy. Should they not do so, my right hon. Friend will have no option but to consider the use of the powers available to him.

Unemployment Statistics

Mr. Rowlands: asked the Secretary of State for Wales how many people were unemployed(a)in Merthyr Tydfil,(b)in Mid-Glamorgan and(c)in Wales in September; and what percentage increase these figures represent over those of May 1979.

Mr. Nicholas Edwards: On 9 September 1982 the figures were 4,701, 36,164 and 185,611, respectively, an increase of 156·3 per cent., 133·7 per cent. and 123·6 per cent. since May 1979.

Sir Anthony Meyer: On a point of order, Mr. Speaker. Is it not an abuse of the Order Paper that no fewer than four hon. Members have put down an identical question for which they have clearly merely filled in the form supplied by the Whips?

Mr. Speaker: If the hon. Gentleman reads them carefully, he will see that they are not identical.

Mr. Rowlands: Is the right hon. aware that, even since the question was tabled, the proposed closure of half the BSC Dowlais foundry has been announced? That is the last foundry in Wales belonging to BSC. Will he follow the example of his counterpart in Scotland and publicly announce that he will not preside over the further decline and destruction of the steel industry in Wales?

Mr. Edwards: Of course I regret the reduced capacity of Dowlais, but such matters are for the commercial decision of the corporation. It is not part of the wider consideration of the future of BSC's operations, as the hon. Gentleman implied.

Mr. Ray Powell: Is the Secretary of State aware that several factories on the Bridgend trading estate and throughout Wales will close unless he instructs the Welsh Development Agency to stop the escalating rent increases? Some rents have increased by as much as 10 times. Will the right hon. Gentleman do something to alleviate that problem?

Mr. Edwards: Where increases are as high as 10 times, it is because there have not been any rent increases for a considerable period and the rents are well out of line with current market rents.

Local Government (Redundancies)

Mr. Coleman: asked the Secretary of State for Wales if he will estimate the number of redundancies that will arise in local government in Wales, arising from his statement on local authority expenditure in Wales, made in the House on 28 July.

Mr. Wyn Roberts: No. Local authorities are responsible for determining staff levels. The £1,205 million current expenditure provision, that my right hon. Friend announced in July is 7 per cent. more than this year's provision. Provided pay settlements are kept to very low single figures authorities should, in general, be able to reduce staff through normal wastage.

Mr. Coleman: Does the hon. Gentleman not agree that his right hon. Friend's announcement before the Summer Recess amounts to a cut of about £60 million in rate support grant? Will not such a cut lead not only to reductions in the number of those employed in local government but to cuts in essential services on which the quality of life depends?

Mr. Roberts: I do not agree with the hon. Gentleman, and the points that he has made have been dealt with by my right hon. Friend the Secretary of State. Since the Conservative Party came into office, local authorities in Wales have reduced their manpower by about 5 per cent. without a general recourse to redundancies. We do not see why they should have recourse to redundancies in the coming year. Local authorities are responsible for deciding their priorities for services. The proposed level of local authority current expenditure for next year implies the same levels of service as in the mid-1970s.

Mr. loan Evans: Does the Minister recall that in the depression of the 1930s, when unemployment was less than it is now in Wales, the Government put additional resources at the disposal of local authorities to enable them to provide schemes to employ unemployed building workers? Why do not the Government have such an imaginative scheme now, when there is such mass unemployment?

Mr. Roberts: We have an extensive capital programme. The plans for current expenditure have been increased by £19 million more than was included in last year's public expenditure White Paper. In addition, my right hon. Friend the Secretary of State is increasing capital provision next year by about £17 million.

Mr. Skinner: Where is the business sense in telling town hall workers that, as a result of the Government's cut in the rate support grant, they will no longer get their pay packets from the town hall, but will have to go down the road to the Department of Employment and the DHSS to pick up Government money, without having contributed to the productive side of the economy? What is the sense or morality in that?

Mr. Roberts: The hon. Gentleman is wrong as far as Wales is concerned. The latest Manpower Watch returns show that authorities have started to increase their staff. That trend must be reversed if expenditure is to be kept to the Government's target.

Development Board for Rural Wales

Mr. Hooson: asked the Secretary of State for Wales when he last met the chairman of the Development Board for Rural Wales.

Mr. Nicholas Edwards: I have met him on a number of occasions during the summer and arrangements are being made for a formal meeting very soon to discuss the board's affairs.

Mr. Hooson: What stage has been reached in enabling the DBRW to make industrial investment grants in its own right, as the right hon. Gentleman announced in June?

Mr. Edwards: Discussions have been concluded between the board and the Department over the details. I understand that the board intends to announce the new scheme in Cardiff on 2 November.

Dr. Roger Thomas: Will the Secretary of State make a statement on the future of the DBRW in the light of continuing reports about its impending demise?

Mr. Edwards: I do not know who is responsible for those reports, but since the Conservative Party came to office I have repeatedly made it clear that we support the DBRW, not only in words but in deed, and we shall continue to do so.

Mr. D. E. Thomas: When the Secretary of State met him, did the chairman make representations to him about the effect of the Government's policy on the change in development area status? Is it not illogical to have a specialist agency that is not in an assisted area?

Mr. Edwards: The benefits available to the board and within the board's area are substantially greater than those in comparable areas of unemployment in England. The money available under the new scheme and the details that have been agreed mean that the board will have a very effective package to offer incoming investors and those with new projects within the area.

Mr. Stokes: Is my right hon. Friend aware that I was recently fortunate enough to visit rural Wales? Is he further aware that I found the state of the roads quite the best in the whole of the United Kingdom, the fields and hedges exceptionally trim and all the houses well painted? Therefore, will my right hon. Friend tell our Opposition colleagues the true state of affairs in much of Wales?

Mr. Edwards: After those pleasant experiences, I hope that my hon. Friend will go there again.

Mr. Geraint Howells: We are all aware of the excellent work carried out by the DBRW to stem depopulation. In the light of that, is the Secretary of State in a position to give extra financial aid to the board?

Mr. Edwards: The ceiling of £350,000 in the first full year for the new grants is a good deal higher than any recent payments of grant in a single year under the old arrangements.

National Health Service

Mr. Wigley: asked the Secretary of State for Wales if he will make a statement on the level of future expenditure on the National Health Service in Wales.

Mr. Nicholas Edwards: The Government's plans for future levels of expenditure on the National Health Service in Wales are published in the annual public expenditure White Paper. The most recent such White Paper is Cmnd.8494.

Mr. Wigley: Is the Secretary of State not aware that the people of Wales are outraged and dismayed by the reports of the £56 million cuts in provision for health in the area, which are outlined on page 8 of the Welsh Office paper "Health Service Resources in Wales 1983–84", a copy of which I have in my hands? Will he now make clear the status of the document and give an absolute assurance that there will be no cuts under the headings outlined in the document and that the Welsh Office will be seeking an increase in health services in Wales?

Mr. Edwards: The hon. Gentleman may be outraged by the reports, because there have been some grossly misleading reports, including—I am sorry to say—one 

from the BBC. However, the first sentence of that paper shows that no decisions have been taken about next year's expenditure on the Health Service in Wales. When I met the health authorities last week I made it absolutely clear that the document would enable us to discuss the future planning of finance in the Health Service. We did not discuss numbers, because the Government have not spelt out any numbers for what will be available.

Mr. Abse: Why is the Secretary of State being so unexpectedly and uncharacteristically coy and diffident about the paper, which he describes as a hypothesis, when he is clearly seeking to assuage the Prime Minister's well-known yearning to dismantle the NHS completely? Is he aware that if that option—as he describes it—is applied to Gwent, it will mean the end of the redevelopment of the Royal Gwent hospital, the end of any possibility of the promised hospital for the young chronically sick, the end of any possibility of a district hospital in Panteg or Pontllanfraith, and that all the capital expenditure schemes will be seriously arrested? Why does not the right hon. Gentleman come clean instead of trying to hide behind this curious notion of a hypothesis?

Mr. Edwards: We have had the usual stream of hysterical nonsense from the hon. Gentleman, but I repeat that no decisions have been taken about the amount of money to be made available next year. I made that fact abundantly clear to the health authorities. Expenditure on the Health Service is running at record levels, the number of those employed in the NHS in Wales has increased by about one-third compared with a decade ago and expenditure has increased by more than 5 per cent. in real terms under this Government. The facts speak for themselves.

Sir Anthony Meyer: Is it not clear that the bad faith of much of the comment on this matter is matched only by the hypocrisy of the Labour Party, which would have us believe that there are infinite and infinitely expanding resources available to finance the Health Service? Is it not necessary, if any planning is to be undertaken, that at least the hypothesis of a fixed amount available has to be taken into consideration?

Mr. Edwards: It is an interesting comment on the financial responsibility of Labour Members that they think that it is prudent to plan for the future on the assumption that there will always be unlimited resources available, and do not at least start planning on the assumption that resources may be rather less generously available than they have been over the past decade. It is because they were irresponsible in their financial planning that we have many of our difficulties today.

Mr. Wigley: On a point of order, Mr. Speaker. In view of that unsatisfactory answer and the accusations made, I beg to give notice that I shall seek to raise this matter on the Adjournment at the earliest opportunity.

Llandudno General Hospital

Mr. D. E. Thomas: asked the Secretary of State for Wales when capital resources will be made available to Gwynedd health authority to start work on the reorganisation of Llandudno general hospital.

Mr. Wyn Roberts: The health authority has not yet submitted proposals to the Welsh Office for the reorganisation of the hospital. The question of making capital resources available does not, therefore, yet arise.

Mr. Thomas: Do the Minister and his Department know that the health authority is about to submit final plans later this month? Will the Minister give an assurance that, when he sees the plans, the reorganisation programme will be included in the capital budget for the Gwynedd health authority for 1983–84?

Mr. Roberts: I have already advised the health authority that the scheme will be considered for inclusion in the all-Wales capital programme if it is ready for a start before 1 April 1984. The scheme is included in the health authority's dry run capital programme to start in 1984–85.

Oral Answers to Questions — CHURCH COMMISSIONERS

St. Albans, Teddington

Mr. Jessel: asked the hon. Member for Wokingham, as representing the Church Commissioners, if he will make a statement on the proposals for the future of the redundant church of St. Albans, Teddington.

The Second Church Estates Commissioner, Representing Church Commissioners (Sir William van Straubenzee): I am aware of proposals for the future of this building which the diocese of London has under consideration. I understand that these proposals are the subject of a planning application to Richmond borough council.

Mr. Jessel: Will my hon. Friend explain to the House why St. Albans cannot go on as it is, and will he take note that an extremely difficult situation has arisen because most local people, as he will see from the reports that I have sent to him, wish St. Albans to stand but are opposed to what has been shown to be the only viable way of paying for it?

Sir William van Straubenzee: In the view of the diocese of London, which is the responsible authority in this matter, changes may be necessary. I have to be careful, although I hope that I have not been unhelpful to my hon. Friend, because it could be that recommendations will be made to the Church Commissioners on which they would have to act in a quasi-judicial capacity. However, I can tell my hon. Friend, from certain knowledge, that all the anxieties of the local residents, of which he has made me aware, will be carefully weighed before decisions are reached.

Beneficed Clergymen

Mr. Greenway: asked the hon. Member for Wokingham, as representing the Church Commissioners, if he will make a statement on the conditions of service of beneficed clergymen.

Sir William van Straubenzee: The only information I can add to the answer I gave to my hon. Friend on 5 July is the analysis of stipends in payment in 1982 in the Central Stipends Authority's tenth report, which will be published shortly. I shall arrange for a copy to be sent to my hon. Friend.

Mr. Greenway: I thank my hon. Friend for his reply and congratulate him and those whom he prepresents on

their good sense :in improving the pay and conditions of clergy and bishops, enabling them to carry out God's work on earth in a better way. Does my hon. Friend agree that a handful of bishops and clergy must be overpaid and underworked to have time to produce the sort of political diatribe that has been published today calling for unilateral disarmament?

Sir William van Straubenzee: The Church Commissioners, for whom I answer, have no responsibility for the report in question. It is a report of only a few, however distinguished, people. There are a large number of churchmen who do not think it incompatible w ith their beliefs to regard it as most unwise, in the face of an expansionist atheistic communism, to do away with nuclear weapons.

Mr. Anderson: Will the hon. Gentleman give an undertaking that the clergy, who are poorly paid, will not have their pockets hit because of any alleged waywardness in their views on unilateral disarmament? Will he confirm that, now that some consider the Church of England to be the SDP at prayer, clergymen's pay will not suffer?

Sir William van Straubenzee: Freedom of thought in these matters is total for the clergy. I have no doubt that those few who have temporarily lost their balance politically will soon find it again.

Sir John Biggs-Davison: Is not the danger that the Church of England is becoming, not the SDP at prayer, but the CND at prayer?

Sir William van Straubenzee: It is important to repeat that the report is merely that of a few people. It will he discussed by the Church of England's parliament in February and we must await the outcome of that.

Oral Answers to Questions — HOUSE OF COMMONS

House of Commons Commission (Trade Union Meeting)

Mr. Canavan: asked the right hon. Member for Middlesbrough, as representing the House of Commons Commission, what subjects he expects will be discussed at the next meeting between the Commission and trade union representives of the employees of the House.

Mr. Arthur Bottomley: Negotiations and consultations are usually carried out between representatives of management and trade unions without the direct involvement of the Commission.

Mr. Canavan: When can the trade union side expect a response to its proposals for a procedure agreement on disputes? Does my right hon. Friend agree that the trade union proposals will be far more conducive to good industrial relations than any proposals to impose a no-strike clause, which will be even more restrictive and even more anti-trade union than the notorious Tebbit law?

Mr. Bottomley: I gather that the consultations normally take place on the Whitley committee, which is now working well. I hope that that will continue, but the Commission will always be interested in hearing views from both management and staff.

Mr. Hooley: Will my right hon. Friend give an assurance that when the next annual report of the Commission is published, we shall be given some account of these various conversations?

Mr. Bottomley: The Commission reports as fully as it can. I doubt whether the trade unions and the management would like the conversations to be published. Most consultations are carried out in a way whereby we hope to achieve the best results without discussion on the Floor of the House.

Oral Answers to Questions — INDUSTRY

British Leyland, Bathgate

Mr. Dalyell: asked the Secretary of State for Industry what action he has taken as a result of the criticisms of his Department by the Committee of Public Accounts in relation to the disposal of assets at British Leyland, Bathgate.

The Minister of State, Department of Industry (Mr. Norman Lamont): The report of the Public Accounts Committee, to which the hon. Member refers, is being studied by the Government. In line with normal practice, the Government's response will be given by way of a Treasury minute in due course.

Mr. Dalyell: In the view of Ministers, were the criticisms of the Public Accounts Committee just or unjust?

Mr. Lamont: I cannot anticipate the reply that the Government will be making.

Oral Answers to Questions — EDUCATION AND SCIENCE

National Theatre Museum and Museum of Childhood

Mr. Freud: asked the Secretary of State for Education and Science whether he will make a statement regarding the future of the National Theatre museum.

Mr. Neubert: asked the Secretary of State for Education and Science whether he has yet reached any conclusion on the proposals for the closure of the Museum of Childhood and abandonment of the Theatre museum project.

The Minister for the Arts (Mr. Paul Channon): I announced on 11 August the Government's conclusion that the proposed Theatre museum project in the Old Flower Market in London's Covent Garden should go ahead and that the Museum of Childhood, Bethnal Green, should be retained.

Mr. Freud: Will the Minister accept that we are grateful to him for his courtesy in meeting the pro-museum delegation, that we congratulate him on his part in saving the project, and trust that he and his Department will now put all their good wishes behind the project?

Mr. Channon: I am grateful to the hon. Member for his kind remarks. I assure him that we are determined that the project shall go ahead.

Mr. Neubert: I trust that my right hon. Friend is in no doubt about the gratitude of all of us who are concerned with these museums for the action he has taken to secure their future. However, does he agree that the proposals for closure, which went beyond the question of whether the museums are wastefully run to the political question of whether they should be run at all, have unnecessarily 

raised doubts about Government support for the arts? Will he adopt the quickest means of removing those doubts, by ensuring an adequate allocation for the Arts Council next year?

Mr. Channon: There is, I believe, a separate question on the Order Paper about that matter. No one can be under any doubt about the Government's support for the arts. If the Government had not bothered to support the arts, they would not have taken these two decisions. I was impressed, as were the whole Government, by the strength of representations from both sides of the House.

Mr. Christopher Price: The decision is to be welcomed. On reflection, however, does the Minister really believe that Rayner scrutiny exercises of this kind, carried out by a single, retired civil servant looking partially into the museum problem without taking an overall view, are serious and sensible?

Mr. Channon: One would obviously have to reflect before carrying that proposition further. I believe that the report that the House had to consider was a serious step. It raised serious issues which serious people had to consider before coming to decide a rational allocation of funds. I should like to take this opportunity of saying that much of the criticism of the scrutineer who carried out the report was most unfair.

Mr. Cormack: Is my right hon. Friend aware that members of the Select Committee are grateful to him for acting so speedily on their recommendations? Can we expect that he will act with similar sympathetic expedition on the report to be published tomorrow?

Mr. Channon: Is that not what is called a hypothetical question? We have not seen the report. Naturally, I shall do my best to keep on good terms with the Select Committee.

Mr. Whitehead: I also congratulate the Minister on the decision that he took. I thank him also for seeing the Labour Party delegation that visited him. Whatever he says in the House now, his decision will be seen as a proper rebuff to Mr. Burrett for his report. Will the Minister therefore publicly dissociate himself from recommendation 12 of Mr. Burrett's proposals to the effect that the two museums which were examined should now begin to charge, wholly or in part, for access to their collections?

Mr. Channon: The hon. Gentleman will be aware that the Government have announced that we do not intend to impose charges for general admission to the main collections of museums. I do not wish, however, to prejudge the proposals that future trustees of museums might put forward as part of their policy for the good management of the museums. I do not wish to impose charges against the wishes of the museums.

Ethnic Minority Arts

Mr. Tilley: asked the Secretary of State for Education and Science if he will make special additional funds available for ethnic minority arts.

Mr. Channon: Assistance for the arts is given through the Arts Council, which takes account of ethnic minority applications when considering its grant distribution. Funds are also allocated to arts projects by the Commission for Racial Equality.

Mr. Tilley: Is the Minister not aware of the concern of many ethnic minority communities to maintain their own cultural heritage and so contribute to the cultural richness of multi-racial Britain? Is he not aware also that they feel that they should be able to look to the Government for public funds to provide some of the help that is needed? Will the Minister also confirm that Sir William Rees-Mogg, the chairman of the Arts Council, in his letter to him on 31 August, suggested that there should be a specific allocation of funds in 1983–84 to help ethnic minority arts? Does he intend to agree to that suggestion?

Mr. Channon: Help for ethnic arts, or, indeed, any form of arts, is for the Arts Council to decide in the light of the funds received from the Government. I understand that the Arts Council wishes to give priority to arts provision that has relevance to ethnic minority communities. All these matters will have to be considered when the Arts Council allocation is settled.

Mr. Greenway: I back the call for support in respect of the arts for ethnic minorities. Does my right hon. Friend not agree, however, that, at a time of pressure on available funds, equal treatment must be given to all sections of the community when so many people are calling for help?

Mr. Channon: I believe strongly that this cannot be done on a per capita basis. All Arts Council grants must be assessed on the basis of artistic merit. It must not be done on a per capita basis. This must apply equally to ethnic arts projects as to any other.

Mr. Greville Janner: I accept that allocations cannot be made on a per capita basis. Does the Minister not accept, however, that in areas such as Leicester, with large ethnic minority communities, special care should be taken to see that cultural needs are looked after? Will he consult the governors of the BBC on the need for help to ensure that there are programmes in ethnic minority languages—in mother tongues—during those periods of local radio time which have been allocated to ethnic minority groups in general and to Asian communities in particular?

Mr. Channon: The last part of the hon. and learned Gentleman's question should be addressed to the Home Secretary. I am not responsible for the activities of the BBC. I agree that there is a problem over ethnic arts. The Arts Council takes it seriously and has commissioned a special paper and a special report. Everyone is agreed that worthwhile artistic projects should have support from the Arts Council.

European Music Year

Mr. Jessel: asked the Secretary of State for Education and Science if he will make a statement on the progress of the arrangements for European Music Year 1985.

Mr. Channon: The United Kingdom committee for European Music Year is already active under the chairmanship of his Royal Highness the Duke of Kent. The United Kingdom is also represented on the European organising committee by my hon. Friend the Member for Twickenham (Mr. Jessel) and I should like to congratulate him on his untiring work in this field.

Mr. Jessel: I thank my right hon. Friend for his congratulations and, in turn, congratulate him and the Arts

Council on the fact that the British committee, in its preparations for 1985, is far ahead of all others. Apart from the major role of professional music in European Music Year, is it the intention of the Department of Education and Science to encourage local education authorities and schools to make a major musical effort in 1985?

Mr. Channon: This must be right. My right hon. Friend the Secretary of State for Education and Science has approved, as a member of the United Kingdom committee for European Music Year, a staff inspector for music who has been asked to take the chair for education. I think that this well takes care of my hon. Friend's question.

Mr. Beith: Would not the best contribution of the right hon. Gentleman's Department be to review the effect of cuts on musical instrument teaching and the pros ision of peripatetic music teachers in schools? Will he make use of European Music Year to take action?

Mr. Channon: The hon. Gentleman has a good point. I am also flattered that he should think that I shall still be Minister for the Arts in 1985.

Sir David Price: Is my right hon. Friend aware that there is no country where amateur music-making is more important than the United Kingdom and that there is also no country where closer accord exists between amateur and professional music-makers? Will he ensure that amateur music-makers play an important part in his plans for European Music Year?

Mr. Channon: That is mainly a matter for the committee. I agree with my hon. Friend. Amateur music-makers are represented on the committee.

Mr. Pavitt: Will the activities of the Royal Academy of Music and the Royal College of Music be co-ordinated through the Arts Council? Will the Minister call for reports from time to time, prior to the commencement of European Music Year, to see what is happening in our major institutions?

Mr. Channon: The Royal Academy of Music and, I believe, the Royal College—although I will have to check—are represented on the committee that is organising European Music Year. Their views will be well known. I understand that the Royal College is represented. This need not go through the Arts Council. There will be full representation on the European Music Year committee.

Arts Council

Mr. Murphy: asked the Secretary of State for Education and Science when last he met the chairman of the Arts Council; and if he will make a statement on the discussions which took place.

Mr. Channon: I met the chairman on 4 October, when we discussed various topics of mutual interest.

Mr. Murphy: I thank my right hon. Friend for that answer. I should like to elucidate more details about private patronage. Does he expect more encouragement for this important feature of the arts in consequence of actions to be taken by the Arts Council?

Mr. Channon: Yes, I very much hope so. The chairman of the Arts Council is keen to encourage private


sponsorship of the arts. My impression is that this is still increasing at a fast rate. I hope very much that this continues to be the case.

Mr. Whitehead: As the Minister, at an early stage, read Sir William Rees-Mogg's letter, will he accept that if the level of funding for the Arts Council next year falls significantly below £98·5 million, one of the four national companies based in London may have all financial support withdrawn? Will he accept also that a proper level of funding for those companies is needed, especially as we await the recommendations on this subject from the Select Committee on Education and Science?

Mr. Channon: The Government have yet to announce public expenditure plans for next year. All these factors will be borne in mind. I do not believe that the hon. Gentleman would wish to raise alarms. There is no evidence that what he says is true and that any one of the four great companies is in danger.

Mr. Cormack: Did my right hon. Friend see the excellent leader inThe Daily Telegraphabout candle-end savings? Will he take that carefully into account when allocating the Arts Council grant for next year?

Mr. Channon: Yes, I certainly read that leader. I am sure that my hon. Friend will draw it to the attention of other hon. Members.

Mr. Flannery: In view of the widening interest in the affairs of the Arts Council and the demands for far more money to be put at its disposal, will the right hon. Gentleman bear in mind that the council is a somewhat remote and nebulous body and that even most people interested in the arts have no idea who serves on it? Will he think seriously about introducing an element of democracy into the membership of the council and allow groups such as the TUC—[Interruption.]—which has an important arts committee, although the ignoramuses on the Conservative Benches do not understand that, to be represented properly on the Arts Council?

Mr. Channon: There have often been individual trade unionist members of the Arts Council, and that might well be a very good idea again. What I cannot accept is that people should be represented as of right. There would be no end to that process. All sorts of groups want to be represented as of right, including all the local authority associations and many others as well. That would be even worse than the present situation.

Ministerial Statements

Mr. Speaker: Order. Before I call the statement, I have had notice of two different points of order.

Mr. Michael Cocks: On a point of order, Mr. Speaker. On 26 February this year—

Mr. Dennis Skinner (Bolsover): This is the big one.

Mr. Cocks: On 26 February this year at 11 o'clock in the morning I raised with you on a point of order the highly unsatisfactory state of affairs that had arisen through the failure of the Government to honour the convention whereby copies of statements are made available to Opposition spokesmen at least half an hour before the statement is made. I said at that time that we understood that from time to time circumstances arise that make it inevitable that this does happen. In the case of a natural disaster it is obviously difficult to cobble something together until the last minute. On that occasion there was some shred of an excuse for the Minister, because he had been engaged in discussions until very late the previous night.
I now have to tell you, Mr. Speaker, that, despite the apology of the Minister on that occasion, the same situation has arisen in the context of the statement that is about to be made on the National Health Service. The statement was asked for by my right hon. Friends in the middle of last week. Ample notice was given and yet the text was not delivered into our hands until 3.16 this afternoon. It is true that an ad hoc arrangement was made to telephone the text of the statement to my hon. Friend the Member for Crewe (Mrs. Dunwoody), but even that conversation with the Department did not take place until after 3 o'clock.
On television a few nights ago the Leader of the House was making some philosophical reflections on the state of

British society now and in the future. It would be helpful to the House if he were to make some reflections on the efficiency of Government Departments in these matters and if he could get a bit of the ordinary common courtesy and conventions of the House back into the usual channels.
I should like to think that you, Mr. Speaker, could offer us some protection from these abuses and that perhaps the late delivery of the text was due to a change of heart by the Government over the dispute, but on that we shall have to wait to hear what the Secretary of State says.

The Secretary of State for Social Services (Mr. Norman Fowler): Further to that point of order, Mr. Speaker. I can only apologise unreservedly to the House for the delay in the statement's arrival here. I understand that it was certainly corrected and sent from the Department on time. I will ensure that this does not happen again, and I hope that the House will accept my apologies.

Mr. Tom McNally: On a new point of order, Mr. Speaker. This covers exactly the same point as the previous point of order. Seven days after the House rose the Secretary of State for Education announced he closure of seven teacher training colleges. Most of those decisions must have been taken by the Department while the House was sitting.
Are you, Mr. Speaker, willing to defend the House and make sure that Secretaries of State do not come along apologising, but rather make their statements to the House at the right time so that hon. Members with constituency interests can defend their constituents?

Mr. Speaker: I can say at once that I am not so willing. I am not going to take responsibility for when Ministers issue statements or for the content of the statements. I should be foolish if I were to do so.

National Health Service (Pay Dispute)

The Secretary of State for Social Services (Mr. Norman Fowler): With permission, Mr. Speaker, I should like to make a statement on the pay dispute in the National Health Service. The House will debate these matters on Wednesday, but I felt that it would want to be brought up to date today on the latest position.
When I last reported to the House on 20 July I outlined the steps that the Government had taken to resolve the pay dispute and end the industrial action in the Health Service. I reminded the House then that we had twice increased the resources available for pay in the current financial year. The second increase announced in June would have allowed pay increases of between 6 and 7½ per cent. at a total cost of £418 million. These increases compared favourably with setlements for other large groups of workers in the public sector. We also offered talks on new permanent arrangements for determining the pay of all Health Service staff. We made it clear that this was the Government's final decision on the resources available for pay this year.
As the House will know, the Royal College of Nursing balloted its members in August on the new offer. The Health Service unions affiliated to the TUC on the other hand continued to refuse to negotiate. They remained committed to their claim for pay increases of 12 per cent. for all non-medical staff and rejected any idea of a differential for the nurses.
Following the vote by the membership of the Royal College of Nursing against acceptance of the revised offer, consultations continued on possible ways of breaking the deadlock. After detailed discussions, in particular with the TUC, I put further proposals to the professional bodies and the TUC health services committee on 16 September. I have arranged for a copy of the proposals to be placed in the Library of the House.
In brief, we offered to complete a two-year arrangement with Health Service staff. This would bring forward agreement on pay for 1983–84 and offered the possibility of giving staff higher percentage increases during the course of this year. Most important, the proposals would have paved the way for the introduction of new arrangements for determining the pay of nonmedical staff. The amount of money on the table for a two-year settlement was almost £1,100 million.
We had every reason to believe that the proposals would form an acceptable basis for negotiation. We had discussed them in detail with the Royal College of Nursing and representatives of the Health Service unions. I am pleased to be able to tell the House that the Royal College of Nursing, the Royal College of Midwives, the Health Visitors Association and the Association of Nursing Administrators accepted the invitation to talk about them. These discussions are still continuing. The whole House will hope that they will be successful.
In contrast, the health unions' reactions was to refuse even to talk to us. This was in spite of the fact that we had discussed in detail the proposals with the chairman of the health services committee, Mr. Spanswick, and the secretary, Mr. Jacques. The final proposals put to the committee had been altered to take account of the views

they expressed. For that reason, I consider the unions' refusal even to talk about the offer of £1,100 million quite indefensible.
Even more serious, however, was the decision by the TUC health services committee to call for a further campaign of industrial action.
There had been five days of industrial action in August, and this was followed by a further day on 22 September. As before, the form and intensity of action varied across the country. But there were several reports of a complete withdrawal of all cover, including emergency cover in some hospital departments. In some areas it was only because management and staff volunteers provided the necessary emergency cover that services could continue.
September 22 also saw an attempt to widen the industrial action to workers outside the Health Service. The effect was confined largely to the public sector. In the private sector, most people worked normally although some industries were badly affected, including the newspaper industry. Since then, the unions have called a series of regional strikes, but their effect has been less than on 22 September.
I should like to make it clear that the public owe a great debt to the majority of staff, particularly doctors and nurses, but also to many others in all groups within the Health Service who have continued to care for patients in recent months. Because of their action, the position is not worse, and I pay tribute to their dedication. However, in spite of their efforts, the effect of this dispute on patients is serious and will become more serious the longer it continues. We estimate that, since the industrial action began, 110,000 operations and 105,000 outpatient appointments have been cancelled, and waiting lists have increased by about 115,000. It was always quite wrong for the unions to claim that their action would not harm patients. There is no doubt that it has caused distress and suffering.
The fact is that, although the Government have made continued efforts to settle this dispute, the Health Service unions have not budged from their quite unrealistic claim—a claim which looks even more unrealistic with inflation now running at the lowest level for 10 years. The offer of £1,100 million on the table for two-year settlement leading to an agreement on new long-term arrangements was worked out with representatives of the TUC and offers a fair and honourable resolution to this dispute. I urge the Health Service unions to call off their industrial action and to return to the negotiating table.

Mrs. Gwyneth Dunwoody: If there had been anything of value in this statement, I could have understood the Minister's desire to keep it from the House until the last possible moment, but what we have had is regurgitated pap with no new offer of any kind. A new initiative would have been extremely welcome, with some new money on the table. Is this not simply a rearrangement of the existing package? Although the Minister talks glibly about the RCN's acceptance of talks, is it not true that on two occasions the members of the Royal College of Nursing have totally rejected the arrangements that were put to them?
I must make it clear that the TUC has never refused to negotiate with the Government on the pay package for 1982–83, but it has refused to accept a dressed-up rearrangement that offers no improvement of any kind. Will not the Minister now be honest and accept that, as 33


per cent. of the existing offer will come out of RHA budgets, the industrial action can have no effect in comparison with the cost of his cuts on long-term patient care? Hospital closures will have such a direct effect on patients that the existence of longer waiting lists will pale into insignificance in comparison with what the Minister is doing at present.
Is it not true that, in the tripartite talks, where the chairman was the Minister of State, there was a suggested deal for April 1983? The Minister now talks about April 1984. Are we to take that as a sign that when he talks about setting up new machinery he is no more serious than he was in offering a decent deal to the unions? This is a non-statement, and the sooner the Minister takes responsibility for the enormous damage that he is doing to the National Health Service the better.

Mr. Fowler: I do not know about a non-statement, but certainly that was a non-response. It is, I think, about time that the Opposition came out and said what they said in Government, and were prepared to condemn the hardship caused by industrial action inside the Health Service. At no stage has the Opposition Front Bench been prepared to do that. In my opinion, that is a disgraceful commentary on the Labour Party.
In answer to the questions asked by the hon. Member for Crewe (Mrs. Dunwoody), the advantages of the two-year agreement are that it gives the staff a higher percentage earlier, that it puts £1,100 million on the table as a basis for negotiation, and that it leads through to a commitment to talks on newer pay arrangements for the National Health Service, which is what many people in the Health Service and outside want.

Mr. Robert Hughes: When?

Mr. Fowler: We had put April 1984 as the aim for those talks.
As for progress, talks are continuing, as I said, with the Royal College of Nursing, the Royal College of Midwives and two other professional bodies. In my view, the House would welcome their decision to talk, and I believe that the House will hope for the success of those talks. Certainly, I am sure that the House does not expect a sudden result tomorrow, but I shall certainly tell the House as soon as there is something to report.
On the unions' refusal to talk, which was the hon. Lady's third point, I remind her that the proposals were carefully worked out after closed talks with Mr. Spanswick, the chairman of the Health Services Committee, and Mr. Jacques, the secretary.

Mrs. Dunwoody: No.

Mr. Fowler: Those were private talks, and I have revealed the content of one of those talks. If the hon. Lady says "No" to that, I am prepared to ask Mr. Spanswick and Mr. Jacques for their permission to give all the dates and venues of the talks that took place.
In answer to the hon. Lady's fourth point, we have shown our commitment by spending £14½ billion on the National Health Service. That is higher in real terms than any other Government have spent in the history of the Health Service.
The talks on permanent arrrangements are taking place under the chairmanship of the Minister for Health. Any delay is certainly no responsibility of the Government, although at times I doubt whether one or two of the health unions represented there actually want to make progress.

Several Hon. Members: Several Hon. Members rose—

Mr. Speaker: Order. The House has heard that this matter is to be fully debated on Wednesday. I therefore propose that questions now should not last longer than 20 minutes. I shall allow 20 minutes and then move on.

Mr. Clement Freud: As there is really nothing new in the Secretary of State's statement, will he explain to the House which particular paragraph took him so long to bring before those of us who were prepared to get a statement? Does he not agree that it cannot be surprising that negotiators are reluctant to meet him when he has announced that there is to be no overall increase in the offer? Why is he so frightened of putting the matter to independent arbitrators?

Mr. Fowler: I have already apologised for the fact that the statement was not available sooner. It was an administrative point, rather than a point of substance. I hope that the hon. Gentleman will at any rate have the grace to accept that. On the progress of the talks, I should have hoped, frankly, that the Liberal Party would be pleased that we were continuing talks with the nurses, the midwives and the Health Visitors Association. I should have thought that that fact would have given the Liberal Party some pleasure, and that it would have joined us in hoping that the talks would be successful.
We have already made our position clear on arbitration. Arbitration does not settle where the money comes from. We have already moved our offers in both the Civil Service and the teaching profession after arbitration.

Sir William Clark: Since the British taxpayer is putting more money into the National Health Service in real terms than is being done in any other nation, and since an increase of the present offer would mean only that the British taxpayer must part with more money, will my right hon. Friend assure the House that one reason for low wages in some sections of the Health Service is gross overmanning and inefficiency? What action is being taken to cut the obvious overmanning in that huge service?

Mr. Fowler: My hon. Friend raises an important issue. We have already made efforts to ensure that the National Health Service can obtain the best value from the money that it uses. That includes checks on manpower. During the past few months we have begun regional reviews. We are setting manpower targets and are bringing in external advice from the private sector to check manpower and [ hope to make a statement soon. One reason for low pay is that the workers are paying high tax because of the burden of public spending.

Mr. William Hamilton: Is the Secretary of State influenced by the undoubted fact that the overwhelming mass of public opinion is solidly behind the Health Service workers' claim and that his attempt to set one section against another will be treated with the contempt that it deserves? When will he recognise that, unless he is prepared to come forward with additional money, no juggling with the existing money will bear fruit with the trade unions and that the industrial action will continue, with the support of the Labour side of the House?

Mr. Fowler: The hon. Gentleman's final statement is a great pity, because the Labour Government condemned industrial action that affected patients. This industrial


action is affecting patients. There is no question about that and I cannot understand the attitude of Labour Members, who only a few years ago were prepared to condemn such action, in now saying that they will support it. The hon. Gentleman's point about divide and rule is totally absurd, because the offer on the two-year settlement was put to the trade unions and to the professional bodies at the same time. It is to the credit of the professional bodies that they were prepared to talk about it, and, regrettably, to the discredit of the health unions that they were not.

Mr. Mike Thomas: Is the Minister aware that he is Secretary of State for Social Services, not Pontius Pilate? He cannot abdicate responsibility for the results of the dispute. He can beat the health workers if he chooses, but the House is entitled to ask whether it is worth the price not just in the extended waiting lists about which he talked but in a legacy of bitterness and the effect on the current ballot on the no-strike rule in the RCN. Will he admit that he was wrong not to send the matter to arbitration, which is a long-established procedure in the Health Service, and will he now do so?

Mr. Fowler: It is not a long-established procedure in the Health Service. The way forward is by negotiation and I should have hoped that the SDP, for what its views are worth on such matters, would support the fact that talks are continuing between the Government and the nurses and other professional bodies. I am not sure of the SDP's present incomes policy—it went out of the window in Great Yarmouth—but its members should support the proposal that the unions should talk to the Government.

Mr. R. A. McCrindle: In view of the lengthy stalemate in this dispute, and notwithstanding the talks with the RCN and others, have the Government given consideration to a decision in the near future to pay the 6 per cent. now on offer, without prejudice to further negotiations, so that the minds of the trade unionists may be concentrated rather more on a lump sum back payment and their eyes lifted more to the 1983–84 round of negotiations than to the present, rather lengthy, round?

Mr. Fowler: We have not considered that. The way forward is by the present negotiations. Talks are in progress and that is the most constructive and only possible way forward.

Mr. David Ennals: Will the Secretary of State accept that this is by far the longest and most damaging dispute in the Health Service? Will he accept not only that, as he said, it is causing great damage to patient care but that as a result of combining it with cuts in funds available to the Health Service, morale within the service is at an all-time low? Does he agree that he has until Wednesday either to come forward with a new offer or to accept arbitration, about which there is strong feeling on both sides of the House?

Mr. Fowler: The House will not readily accept advice from the right hon. Gentleman, who presided over the winter of discontent. The Government have shown their commitment to the Health Service by providing a budget of £14½ billion. That is a 5 per cent. increase in real terms

and a gross national product increase from 4·8 to 5·5 per cent. We shall not take lessons from the Labour Party on that.

Mrs. Sheila Faith: The House must welcome the fact that the nurses and other professional bodies are considering the two-year agreement, but will my right hon. Friend draw the attention of the health workers to the London ambulancemen, who have tumbled to the fact that Arthur Scargill and others are not interested in the future of the Health Service but are using the dispute to defeat the Government's anti-inflation policy?

Mr. Fowler: My hon. Friend is right. There are those outside the Health Service who have no interest in its future but who are trying to use the dispute against the Government and against the Government's success with their anti-inflation policy. That is another reason why we should continue with our policy.

Mr. Laurie Pavitt: Will the Secretary of State confirm that the two-year settlement, whether under option A or option B, would mean an increase of £45 for a ward sister in two years? Will he do something about the iniquitous position whereby, since 1 April, nurses in residence have suffered an increase of 10 to 12 per cent. in the cost of meals and residence charges but have not received a pay increase? Will he come clean about the increase in inflation since their previous pay increase?

Mr. Fowler: The estimated increase in earnings for a ward sister on the 6 to 7½ per cent. option would be a minimum of £9·23 and a maximum of £11·84. That does not coincide witht the hon. Gentleman's figure.

Mr. Cyril D. Townsend: Is my right hon. Friend aware that during the recess I discovered in my constituency great respect, as always, for nurses and others in the Health Service but nothing other than contempt for those who wish to exploit the issue for political purposes at the expense of the elderly and the sick? Will my right hon. Friend remind the House how many public sector groups have already accepted pay increases of about 6 per cent., such as the civil servants and policemen? Did they not accept those increases partly in the belief that the Government would stick to their part of the bargain?

Mr. Fowler: About 9 million workers have accepted average pay settlements of about 7 per cent., but the teachers, the civil servants and the Armed Forces have accepted about 6 per cent.

Mr. J. W. Rooker: Will the Secretary of State admit in the House that the nation and the National Health Service owe a debt to those who clean the lavatories and drains in the National Health Service as they do to every other Health Service worker? It is invidious that the Secretary of State should continually single out the nurses and doctors. Does the Secretary of State know that his Department, in reply to hon. Members who have raised the matter in writing, is sending out a fact sheet that refers to analogies with the mining industry? Can he tell us which jobs in the mining industry are analogous with this dispute?

Mr. Fowler: The fact sheet and the analogies which the hon. Gentleman mentions refer to the general level of wages. I have never sought to disguise or play down the contribution which the ancillaries have made to the


successful running of the National Health Service. In my statement I paid tribute to ancillary workers who have continued to work and care for patients, and I condemn those who have not.

Mr. Tony Marlow: Would my right hon. Friend take the opportunity to explain to members of the Labour Party—generous to a fault, as they always are with other people's money—that on the figures given so far the Health Service is costing the average individual in Britain the massive sum of £250—plus per annum? Is my right hon. Friend aware that the generous figure of £1,100 million that he has put on the table will add an extra £80 a year to the bill of the average family of four, which is the equivalent of £1·60 a week for each family, just to pay the increase?

Mr. Fowler: That is right, although some of the figures have to be changed. The sum of £1,100 million is on the table for negotiation, as my hon. Friend the Member for Northampton, North (Mr. Marlow) said. As he also said, that money must come from somewhere. It comes from the taxpayer and it is time that the Opposition took that message on board.

Mr. Reg Race: If the National Health Service is safe with the Conservative Party, as the Prime Minister has said, why are the Government considering that in addition to making local health authorities pay for one-third of the increase this year, they will make local health authorities responsible for all of any wage increase for Health Service workers next year? If that proposal were implemented, would it not cause scandalous cuts in services? Will the Minister take the opportunity to assure the House and the chairmen of regional and district health authorities, who have raised the matter with me, that the Government have no intention of pursuing that course?

Mr. Fowler: I must ask the hon. Gentleman to wait a few weeks for a full answer to his question about the effects of such a proposal being implemented.

Mr. Barry Henderson: Meeting the Health Service workers' claim in full has not been suggested. Could that be partly because 1·2 million taxpayers work in the Health Service or because the increase in nurses' pay since the present Government came to office has been 12 per cent. beyond the rate of inflation?

Mr. Fowler: The average increase in nurses' pay has been 61 per cent. in the lifetime of the present Government. The suggestion is that no Opposition Member supports the 12 per cent. If that is so, their attitude has changed in the last three or four months.

Mr. Robert Hughes: Does the Secretary of State accept that his offer to the Health Service workers must be measured not in terms of today's inflation but in terms of the 15·6 per cent. increase in the tax and price index in the 12 months covered by the 12 per cent. increase? Does he also accept that the postponement from April 1983 to April 1984 of the operation of the new agreement on pay is a gross betrayal? Would he not do better to examine the dispute afresh than to try to prove his virility to his right hon. Friend the Prime Minister?

Mr. Fowler: The hon. Gentleman must accept that the Government, by sticking to their policies, have brought inflation down to the lowest level for 10 years. That was the aim of the Opposition. The Conservative Government have achieved it.

Mr. Michael Colvin: Is my right hon. Friend aware that on the question of priorities for limited resources, the use of outside contractors to provide ancillary services in the NHS could save about £400 million a year—that is, 20 per cent. of the cost of such services? Is he aware that if that were done he would be able to pay every nurse an extra £1,000 a year?

Mr. Fowler: I do not know about the last part of my hon. Friend's question. The Government support using outside contractors where that makes sense and reduces costs.

Mr. Stanley Newens: Is it not hypocritical to say that patients suffer because of industrial action and to remain silent about the greater suffering of patients because of the Government's financial policy and the closure of facilities? Is the Secretary of State aware of the proposed closures in my constituency of a casualty department, a female surgical ward and an alcoholic treatment centre as a result of his policies? Will he agree that damage to patients results from that?

Mr. Fowler: I shall have to examine the details of what the hon. Gentleman says. All closure proposals will come to us. The hon. Gentleman fails to understand, or to concede, that the Government are not cutting the Health Service budget but are increasing spending on health. That is incontrovertible.

Mr. Dennis Skinner: In view of the hundreds and thousands who have been added to the waiting lists, how much will it cost the National Health Service, and so the Government and/or the taxpayer, to deal with them, especially since the increased waiting lists are the result of the Government's intransigence? Does rot the right hon. Gentleman have a cheek to talk about other workers such as miners joining picket lines and demonstrations in support of the Health Service workers because they are supporting their Health Service, unlike Tory ranks, almost all of whom do not believe in the National Health Service and take out private insurance?

Mr. Fowler: Not many hon. Members would think that Mr. Arthur Scargill appeared on the picket line because of his concern about the Health Service.

Mr. D. N. Campbell-Savours: Mr. D. N. Campbell-Savours (Workington) rose—

Mr. Dennis Canavan: Mr. Dennis Canavan (West Stirlingshire)rose—

Mr. Speaker: Order. We have only a minute to go, but since only two hon. Members wish to ask further questions I shall call them both.

Mr. Campbell-Savours: The Secretary of State said that the claim was unrealistic. Is he not being unrealistic in demanding that over 100,000 low-paid health workers, already taking home little more than £50 a week, should be subject to a 6 per cent. increase which will give them coppers, when the majority of people, if they knew that to be the truth, would support the health workers arid demand that they be paid additional money?

Mr. Fowler: The hon. Gentleman raises the whole question of low pay. There has been much talk about low pay which is not peculiar to the Health Service. The only progress that we can make is by negotiation. One of the essential parts of that negotiation is to achieve new permanent arragements inside the Health Service which might hold out hope for Health Service workers generally.

Mr. Canavan: Is the Secretary of State oblivious to the fact that his irresponsibility has led to the dispute dragging on for over six months? Is he aware that Health Service workers have the support of the public, as will be seen again during the Scottish day of action on Wednesday? Is it not time that the Secretary of State stopped trying to divide the nurses from other Health Service workers and instead ensured a full 12 per cent. increase for all—and back dated at that?

Mr. Fowler: I should be interested if the Opposition's official case were that we should pay 12 per cent. in full. If that were so, they would be more than usually irresponsible in terms of public spending. There is no question of seeking to divide and rule. The September offer was made to the professional bodies and the TUC. The TUC refused to talk about it and refused to negotiate. That is indefensible.

Britoil (Sale of Shares)

Mr. Merlyn Rees: I beg to ask leave to move the Adjournment of the House, under Standing Order No. 9, for the purpose of discussing a specific and important matter that should have urgent consideration, namely,
the use of substantial amounts of taxpayers' funds to facilitate the impending sale of shares in Britoil, that is the oil production side of BNOC, and all the oil interests of the British Gas Corporation, without prior consultation or investigation by this House or its Committees.
This is a specific matter as we are dealing not with the whole question of privatisation but with the particular matter of the sale of shares in Britoil and subsequent similar sales in subsidiaries of the British Gas Corporation. It is an important matter because, as was said repeatedly at the time of the introduction of the Bill which facilitated these sales, the sale will be a major issue on the Stock Exchange and the largest privatisation measure of this Government. It is important because it was felt—subsequent statements emphasised this—that the sum involved would make a major beneficial impact on the finances of the public sector.
Valuations of Britoil at the time were £2 billion and thus the value of the shares to be sold was more than £1 billion. Recent press leaks and comments make it clear that the Government now appear willing to proceed with the sale for a great deal less than was envisaged and may even be paying over to Britoil sums of money to facilitate the sale, sums which are matter for consideration by the House.
The financial propriety of proceeding with the sale is raised by these revelations and Parliament, which has a historic function as the arbiter of the financial propriety of any Government's actions, is not to have an opportunity to scrutinise these vital public financial transactions before the sale. Debate on the order which was laid before the House this summer on the transfer of shares to the Secretary of State does not enable us to discuss the subsequent share issue. As was repeatedly pointed out when the Bill was being debated, there is no mechanism for either the House or its Committees to debate the substance or detail of the issue.
The matter is urgent not least because without immediate discussion the sale will be effected on terms that have not had Parliament's scrutiny. As with Amersham, a subsequent appeal for a debate, which I made at the time, or a subsequent investigation by the Public Accounts Committee will be too late to affect this vital matter.
Revelations on the BBC last evening by the chairman of Britoil, who is not answerable to this House, about some aspects of the sale, only add to the urgency.

Mr. Speaker: The right hon. Member for Leeds, South (Mr. Rees) asks leave to move the Adjournment of the House for the purpose of discussing a specific and important matter that he thinks should have urgent consideration, namely,
the use of substantial amounts of taxpayers' funds to facilitate the impending sale of shares in Britoil, that is the oil production side of BNOC, and all the oil interests of the British Gas Corporation, without prior consultation or investigation by this House or its Committees.
I listened with care to the right hon. Gentleman, as did the whole House, because he has raised an important matter.


He knows that, under Standing Order No. 9, I am directed to take account of the several factors set out in the order—there are several factors—but to give no reason for my decision.
I listened with anxious care to the right hon. Gentleman, but I must rule that his submission does not fall within the provisions of the Standing Order and, therefore, I cannot submit his application to the House.

National Health Service (Pay Dispute)

Mr. Speaker: The hon. Member for Newcastle upon Tyne, West (Mr. Brown) has let me know that he seeks to make an application under Standing Order No. 9 for a debate on the dispute in the National Health Service, which the House is to debate on Wednesday. I submit to him that to persist: in his application would be an abuse of our rules in view of the fact that the House is going to discuss the matter on Wednesday. The debate has been guaranteed.

Mr. Robert C. Brown: With due deference to what you have said, Mr. Speaker, I beg to ask leave to move the Adjournment of the House, under Standing Order No. 9, for the purpose of discussing a specific and important matter that should have urgent consideration, namely,
the crisis in industrial relations within the National Health Service due to the Government's intransigence in prolonging the present pay dispute with its consequent effect upon both the morale and efficiency of health care within the service.
I did consider withdrawing my application in view of the impending statement but, having heard the statement and subsequent exchanges, I am glad I did not. I am extremely concerned that National Health Service workers, an eminently reasonable group of people, are being driven into militancy by the Government's attitudes and lack of action. We are now starting the next wage round while we have a claim from the previous wage round, when inflation was 12 per cent.-plus. To talk now of existing inflation is to perpetrate the three-card trick on National Health Service workers. By allowing this dispute to carry on and by refusing arbitration, the Secretary of State is behaving like an industrial skinhead, when one reflects that the unions to which he so offensively refers have expressed their wish to accept arbitration.

Mr. Speaker: Order. The hon. Gentleman must not make the speech he would make if I were to grant his application. He must confine his remarks to justify ing his call for an immediate debate.

Mr. Brown: I submit to you, Mr. Speaker, that such is the urgency of the dispute that the Government stand condemned that we should be debating the Mental Health (Amendment) Bill today when we should have been debating the National Health Service dispute. I appeal Ito you, Mr. Speaker, to agree to my submission, in spite of the fact that the House is to debate the issue on Wednesday, so that we can debate it 48 hours earlier arid thus seek to alleviate much of the present suffering throughout the country.

Mr. Speaker: The hon. Member for Newcastle upon Tyne, West (Mr. Brown) gave me notice before midday that he would seek leave to move the Adjournment of the House for the purpose of discussing a specific and important matter that he thinks should have urgent consideration, namely,
the crisis in industrial relations within the National Health Service due to the Government's intransigence in prolonging the present pay dispute with its consequent effect upon both the morale and efficiency of health care within the service.
As the House knows, I am directed to take account of the several factors set cut in the Order, but to give no reason for my decision.
I cannot advise the House that the hon. Gentleman's submission falls within the provisions of the Standing Order.

MENTAL HEALTH (AMENDMENT) [MONEY] (No.2)

Queen's Recommendation having been signified—
Resolved,

That, for the purposes of any Act of the present Session to amend the Mental Health Act 1959 and for connected purposes, it is expedient to authorise the payment out of moneys provided by Parliament of the expenses of the Secretary of State in paying remuneration, allowances, pensions or gratuities to or in respect of persons exercising functions in relation to any review of—

(a)the exercise of the powers and the discharge of the duties conferred or imposed by those Acts so far as relating to the detention of patients or to patients liable to be detained under those Acts; or
(b)the care and treatment in hospitals or mental nursing homes of patients who are not liable to be detained under those Acts.—[Mr. Kenneth Clarke.]

Mental Health (Amendment) Bill [Lords]

As amended (in the Standing Committee), considered.

New Clause 3

INFORMATION AS TO HOSPITALS

'(1) Where a court is minded to make a hospital order or interim hospital order in respect of any person it may request—

(a)the Regional Health Authority for the region in which that person resides or last resided; or
(b)any other Regional Health Authority that appears to the court to be appropriate, to furnish the court with such information as that Authority has or can reasonable obtain with respect to the hospital or hospitals (if any) in its region or elsewhere at which arrangements could be made for the admission of that person in pursuance of the order, and that Authority shall comply with any such request.

(2) In its application to Wales subsection (1) above shall have effect as if for any reference to any such Authority as is mentioned in paragraph(a)or(b)of that subsection there were substituted a reference to the Secretary of State, and as if for the words "in its region or elsewhere" there were substituted the words "in Wales".'.[Mr. Kenneth Clarke.]

Brought up, and read the First time.

The Minister for Health (Mr. Kenneth Clarke): I beg to move, That the clause be read a Second time.

Mr. Speaker: With this it will be convenient to take Government amendment No. 71.

Mr. Clarke: This first debate touches upon the extremely important question of the problems that are sometimes encountered by the law courts in finding hospital places for mentally disordered people who appear before them. This problem has caused concern over the years both to those who practise in the courts and those who follow these matters in the House. Governments of both complexions have tried to improve matters over the years and it was a question that exercised hon. Members on both sides of the Standing Committee that considered the Bill.
New clause 3 is an attempt to introduce a useful new element that should reduce the difficulties in future and, I hope, also pave the way for other proposals in an attempt to get round the appalling problems that can arise when someone appears before a court, charged with a criminal offence, when it is plain that he is suffering from some form of mental illness or acute mental handicap rather than deserving of punishment. Great difficulties then arise in finding a hospital place for that patient.
Over the years a number of suggestions have been made about how the difficulties that are sometimes experienced by the courts might be quickly overcome. One of the most frequent and popular suggestions, at first sight, has been that the courts should be empowered to direct an offender's admission to a particular hospital or direct a health authority to provide a bed for him.
At first sight it seems attractive that a judge, or a bench of magistrates, should be empowered to order that a hospital opens its doors to an offender who should be treated as a patient. All those who have considered the issue in greater depth have decided against giving the courts the power of direction. The report produced by the late Lord Butler and the White Paper that was produced when the previous Labour Government were in office, when the right hon. Member for Norwich, North (Mr.


Ennals) was Secretary of State for Social Services, both concluded that such power of direction would be unworkable. In modern mental hospital practice we insist that those who are in hospital are patients who are treatable and who might benefit from treatment. To force mental hospitals to take patients who, in their opinion, are not amenable to their regimes or to the treatment that they might receive would not be in the best interests of anyone.
We cannot ask professional staff to treat patients to whom they feel that they cannot offer any useful treatment, because their hospitals lack facilities or because of their assessment of the patient's condition. I agree, as have all my predecessors, with those who have said that the courts cannot be given powers of direction. However, I believe that the courts should not be left in the position in which they can find themselves occasionally when dealing with the worst and most difficult cases. That is the position of having to tout around all the hospitals that they can find to ascertain whether a bed can be made available in one of them. This happens rarely because in the majority of cases those who have been concerned with the offender have made arrangements for his admission to hospital, subject to the court's decision, before the case is even heard. It is often the prison medical officer who makes the arrangement. When for some reason the prison medical officer, the defendant's own solicitor or the court authorities are not able to make arrangements straightforwardly, it is the Government's opinion that the court will need advice and assistance when considering what suitable places are available. The new clause provides that that advice and assistance is properly for the regional authorities to provide. It is only the regional authorities that will have the comprehensive knowledge of all that is available within the regional boundaries. Sometimes a regional authority will be able to make arrangements with other regions if its own facilities are lacking.
The new clause provides that whenever a court is minded to make a hospital order, or an interim hospital order, it may, if it chooses, ask the appropriate regional health authority to provide information on the availability of suitable hospital places. The appropriate regional health authority will normally be where the offender presently lives or last lived. Where he does not have a fixed home base, the court will decide which regional authority should be called upon.
The position in Wales is different as there are no regional health authorities within the Principality. In Wales the formal duty to supply information will rest with my right hon. Friend the Secretary of State for Wales. In practice, he will normally exercise this function by directing that an official of the relevant district health authority, or authorities, should give evidence on his behalf. The health authority will supply the information in whatever manner the court requests. Often a straightforward informal letter to the court will suffice. However, on occasions, I am sure that a court will find it helpful to hear in person from a representative of the health authority what facilities might be made available.
As I have explained, in the majority of cases the problem with which we are concerned does not arise and there is no need for the courts to seek information. However, I believe that we are making an important change in the regional health authorities' duties and an important change in the assistance that is open to a court when faced with problems of the harrowing kind that can occur in some of the more difficult cases. Anyone who has

practised in the courts, as I have for many years, has encountered cases where it is plain that the person before the court needs help and treatment rather than punishment. In a majority of cases it proves exasperatingly difficult to find that treatment, with the dangerous consequence that prison is the only alternative to which the court will have to resort. I hope that the clause will provide an improvement.

Mr. Arthur Palmer: Is the hon. and learned Gentleman aware that I have a case, details of which are in front of him, in which the prisoner has been convicted of arson and found to be mentally unstable? He is still being held in prison after three months of negotiations with health authorities.

Mr. Clarke: The new provisions will be of some assistance in just that sort of case. I am sure that the health authority concerned is trying to give such assistance as it can. If the House accepts the new clause, the regional health authority will be obliged to give assistance and will be ready to do so when the Bill is enacted. I hope that the patient is not awaiting admission because of industrial action taken by the staff in the course of the present dispute. At least one case of that sort occurred recently In London but fortunately not many have occurred so far.
There are one or two other steps that we propose to take to supplement the new clause and to try to reduce the number of cases in Bristol or anywhere else where these problems arise.
We continue to have meetings and discussions with representatives of health authorities to try to reduce the problems. We have recently held a meeting with representatives of the Trent regional health authority to discuss the problem in its area. We are holding a series of meetings with other authorities to discuss the same problem. We shall be issuing guidance notes to health authorities and professional staff when the new legislation is on the statute book about the overall effects of the new legislation. Part of that guidance will deal specifically with the problem that we are now discussing.
We shall be suggesting possible mechanisms for tackling the problem such as the idea that is known loosely as the "clearing house". It is an approach that was urged in Committee by my hon. Friend the Member for Basildon (Mr. Proctor), in particular. We shall want to clarify the "clearing house" approach before we put it in any detail to health authorities. We have in mind the possibility of setting up a panel of experienced and knowledgeable professional staff in each region who will try to ensure that the appropriate place is found for individuals in cases of difficulty.
Ministers in my Department propose to raise the problem of finding places for difficult-to-place offenders in mental hospitals as part of the process of regional review which we have set up in the Department. Regular meetings are now held between Ministers and the regions to discuss priority policies for the regions. It is one of the issues that we shall be raising during the regional reviews. I hope that the Mental Health Act Commission, which the Bill is establishing, will be able to assist with the problem. The commission will be able to help in cases where the courts have sentenced people to prison and where a situation has arisen that makes it necessary for them to be transferred to hospital. I shall not speak at greater length about that problem because it is the subject matter of new clause 4,


which will be introduced by my hon. and learned Friend the Minister of State, Home Office, within whose responsibilities it lies. It is a similar and related problem.
I hope that the House will agree that the clause will be a useful addition to the help that is available to the courts. I hope also that I have satisfied the House that the Government are taking the problem seriously and will take whatever steps are open to them very much to reduce the worrying number of cases where the courts find themselves unable to place someone who needs the care and treatment of a mental hospital.

Mr. Terry Davis: It is good to begin our consideration of the Bill on Report on a note of agreement. On behalf of the Opposition, I give a sincere welcome to the new clause. In Committee I tabled several amendements that were designed to deal with the worrying problem that we are now considering. It is fair to say that the Minister has adopted the tenor of one of those amendments. It is also fair to say that the new clause represents the least that we can do to deal with the problem. However, I do not wish to derogate my appreciation of the Minister's action in introducing the new clause.
In Committee I referred to a number of cases where the courts had had great difficulty in obtaining appropriate facilities for those who should receive medical treatment rather than imprisonment. There was one extremely worrying case in the West Midlands which I referred to as the case of Julie—a young woman who had been waiting for months without being admitted to a hospital. She had been kept in a remand centre and had been backwards and forwards to the court where the judge was trying desperately to obtain admission for her to a mental hospital. He had before him a series of psychiatrists, all of whom told him that it was impossible for them to give the treatment that the young woman needed.
4.30 pm
There was another extremely worrying case in Wakefield, which had been brought to my attention by my right hon. Friend the Member for Wakefield (Mr. Harrison). It involved a young man named Paul, who was brought before the court, having been released on one occasion because the court could not obtain admission to any facility for him. The young man had been considered for admission to an ordinary mental hospital, a special hospital and a regional secure unit without being offered a place at any of those institutions. The new clause will be of great assistance to the courts in dealing with such problems. The court will approach the regional health authority for advice on the most appropriate institution for a person.
We welcome the new clause. The problem was raised in Committee as a result of representations by the Justices' Clerks' Society, which considered that this was a growing problem. In its experience, there have been an increasing number of cases where magistrates' courts, as well as Crown courts, have been unable to obtain admission for people to hospitals appropriate for their treatment.
I give an unreserved welcome to the new clause. I am grateful to the Minister for having acted on the suggestions that we made in Committee. He has chosen the lowest option, but we are still grateful. If the provisions of the new clause do not work out in practice, a future

Government, of whatever persuasion, will need to return to the problem. They may need to consider providing a court with the power to insist that people are admitted to hospitals. However, let us all hope that the new clause will make such powers unnecessary and that it will work in the interests of everyone, not least those who need treatment in hospitals rather than incarceration in prison. I give a genuine and sincere welcome to the new clause. We appreciate the Minister's willingness to act on this point.

Mr. Mike Thomas: I associate the unofficial Opposition with the remarks made by the hon. Member for Birmingham, Stechford (Mr. Davis). We should note at the beginning of the final proceedings on the Bill that the Special Standing Committee procedure worked. We received evidence, saw witnesses and took a variety of views in the open rather than within the closed walls of the Whitehall nexus, and that has resulted in producing a better Bill. The new clause is an example of the way in which that process continued to work after the completion of the Committee stage.
I, too, unreservedly welcome the new clause. Great scandal sometimes arises in that area. We want people who need to be in hospital to be in hospital. I hope that the new clause will assist. I know that that is the spirit in which the Minister for Health brought it forward. The Social Democratic Party welcomes it very much. As we are likely to sit late this evening, I shall not trouble the House further.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 5

SOCIAL REPORT

'Where a patient is admitted to a hospital in pursuance of an application (other than an emergency application) made under Part IV of the principal Act by his nearest relative, the managers of the hospital shall as soon as practicable give notice of that fact to the local social services authority for the area in which the patient resided immediately before his admission; and that authority shall as soon as practicable arrange for a social worker of their social services department to interview the patient and provide the managers with a report on his social circumstances. '.—[Mr. Geoffrey Finsberg.]

Brought up, and read the first time.

Mr. Deputy Speaker (Mr. Bernard Weatherill): With this it will be convenient to take the following:
Amendment(a), to leave out from first 'application' to 'made'.
Amendment(b), to leave out 'his social circumstances' and insert
'the most appropriate way of providing care and medical treatment'.
Government amendment No. 77.

The Under-Secretary of State for Health and Social Security (Mr. Geoffrey Finsberg): I beg to move, That the clause be read a Second time.
Perhaps we can continue on the same happy note, because the new clause honours an undertaking that we gave in Committee to the hon. Member for Birmingham, Stechford (Mr. Davis). I know that he does not think that we have gone far enough, but I hope that he will agree that we have met his main point.
The new clause provides that in any case in which a patient is admitted for assessment or treatment under an application made by his nearest relative the social worker


must interview the patient and provide a report for the hospital managers about the patient's social circumstances. It will ensure that a social worker is involved shortly after every admission following an application by the nearest relative, except when the application is made in a case of urgent necessity under section 29.
The hon. Member for Stechford wishes to cover section 29 applications as well. I shall tell him why we have excluded them. I hope that I can convince him. The reason was the immense practical difficulties involved. The maximum period for which a patient can be detained in hospital under an emergency application is 72 hours. It would be difficult, to say the least, for all the steps under the new clause to be completed within 72 hours and for the social worker to make a satisfactorily full report within that time. It would not be right to make provision in law for something which, in many cases, could not be done.
Let us also examine what happens at the end of the 72-hour period of detention. The patient may leave hospital or remain as an informal patient. In that case, the social worker's time would be best spent in providing support, not in writing reports. Alternatively, an approved social worker may be making an application for admission under section 25 or section 26, in which case it would be wrong to require a report under the new clause. If a further application is made by the nearest relative, new clause 5 would apply to that second application. Therefore, if the nearest relative makes an emergency application, a social worker quickly becomes involved in any case.
In amendment(b)the hon. Member for Stechford proposes that the report should be about
the most appropriate way of providing care and medical treatment
rather than the patient's "social circumstances". I am worried that his wording will lead to confusion. The words that he suggests appear elsewhere in the Bill, in clause 16, but that is in the context of deciding whether a patient should be admitted under the Act. New clause 5 is about patients who have already been admitted. It would be confusing to require social workers to go through the same processes as if the question of admission were still under discussion. That is the difference.
What new clause 5 seeks to ensure—which is what everyone in Committee wanted—is that as much information is available about the patient who is admitted by means of an application by his nearest relative as is available when the application is made by a social worker. After admission, it is the patient's present and future care and treatment that require the attention of the professional team looking after him. Surely there is nothing to be gained from looking again at whether he should have been admitted. If the patient has been admitted under an application by his nearest relative, information on his background, family and social circumstances may be lacking. That is the information that the professional team and perhaps the mental health review tribunal would need to help in assessing the patient's present and future needs. New clause 5 ensures that the information will be provided. It does so without the risk of confusion with other reports, which might arise through the wording suggested by the hon. Member for Stechford.
I hope that on reflection, and after the explanation that I have given, the hon. Gentleman will agree that our wording is preferable and that he will not press his amendments.

Mr. Terry Davis: I wish to press amendments(a)and(b). As the Minister said, new clause 5 is the result of an assurance that was given in Committee in relation to a group of amendments and new clauses that I moved. Those amendments and new clauses concern the involvement of an approved social worker if someone has been admitted to hospital on an application by the nearest relative without the social worker being involved. It was the intention of new clause 8, in Committee, to ensure that if the nearest relative applied for admission without a social worker having been involved, the social worker must be involved within 24 hours. 1 did not press that new clause to a vote as a result of the assurance that I was given by the Minister for Health, who said that he agreed with the intention of what I was seeking to provide.
New clause 5 provides for a social worker to be involved only if the application for admission has been made under section 25 or 26 without previous consideration by a social worker. As I said, in Committee I did not press my new clause to a vote because the Minister expressed sympathy and asked for time to consider the precise form of such a provision. New clause 5 does not satisfy either the spirit or the detailed wording of my new clause in three respects. My new clause 8 included a limit of 24 hours, but, to be fair to him, the Minister expressed reservations about that, so I do not take issue with him on that point: this afternoon. The Minister said that without giving the matter consideration he was unwilling to be tied to a period of 24 hours. However, he did not express reservations about the other two points. The wording of new clause 5 expressly excludes emergency admissions and consideration of the appropriate way to provide care and medical treatment. It would restrict the social worker to a report on social circumstances. It is significant that it is headed "Social report".
My new clause stated:
In the case of an application by the nearest relative for admission of a patient for observation in the case of emergency or for admission for assessment or for treatment the hospital managers to whom such an application is addressed will refer the application within 24 hours of receipt of the application to an approved social worker who shall interview the patient and consider the most appropriate way of providing care and medical treatment.
It refers specifically to:
admission … for observation in … case of emergency".
That is the heading of section 29 of the Mental Health Act 1959. The clear intention was to cover section 29 as well as sections 25 and 26 cases.
In our Committee debate several references were made to sections 25 and 26 cases but that was only because we had previously debated an amendment tabled by my hon. Friend the Member for Oldham, West (Mr. Meacher). But it was made absolutely clear, both by myself and by the hon. Member for Newcastle upon Tyne, East (Mr. Thomas), that my new clause included section 29 cases.
Let me quote from our proceedings so that the House is in no doubt about our intention and about the assurance that the Minster gave. I stated:
I assure the hon. Member for Newcastle upon Tyne, East (Mr. Thomas) that he has made an important point because I intend to cover section 29 cases as well.
There is even less room for confusion about the intention when it comes to the social worker advising on treatment or merely on social circumstances. I stated four times in the debate that it was necessary to involve the


social worker in the consideration of care and treatment. The Minister for Health referred to the issue twice. He stated:
Nevertheless, there is a case in good practice and in law for the involvement and advice of an approved social worker who can consider non-medical means of treating the case as soon as is reasonably practicable.
He again stated:
Although that advice could not be binding upon, or overrule the professional medical opinion of a psychiatrist, it should be available and fully considered. The best treatment for a case would thus be considered on a multi-disciplinary basis rather than on that of psychiatric opinion alone."—[Official Report, Special Standing Committee, 13 May 1982; c. 284–299.]
The Minister asked the Committee to allow the Government time to consider the precise form that the provision should take. He said that he was sympathetic to my points and would draft a new clause to provide for an approved social worker to be involved in emergency applications by a nearest relative under section 29 and to take into account care and medical treatment and not simply the patient's social circumstances.
4.45 pm
I am disappointed to learn this afternoon that the Government now take a different view. The Minister says that emergency cases are excluded for practical reasons, as section 29 provides only for someone to be admitted for 72 hours. But the new clause makes provision for the social worker's report to be produced as soon as practicable. I do not take issue about the 24 hours. The Minister made it clear that he was not willing to be tied to that period, but he did not mention excluding emergency cases. It may take as long as 72 hours for a social worker to consider the appropriate form of treatment for a mentally disordered patient, but the Minister cannot pretend that in Committee there was no intention to cover emergency cases. The point was made crystal clear, especially by myself and by the hon. Member for Newcastle upon Tyne, East, and the Minister did not contradict us. Indeed, the hon. Gentleman pressed him several times on whether he was giving a categoric assurance that he would adopt the provisions in my new clause with the exception of the 24 hours.
The Minister now says that it would be confusing for the approved social worker to be involved in considering appropriate care and medical treatment, but the intention has always been for the approved social worker to do that, as everyone in Committee understood. He has no grounds to say now that the understanding was that the social worker should consider only social circumstances.
The Minister says that nothing would be gained by considering whether a patient should have been admitted to hospital after he has been admitted, but from the evidence that we heard we know that many people are admitted to hospital when they should not have been. One aim of my new clause was to bring that problem into the open and to ensure that the approved social worker, in the interests of the patient, could consider the care and medical treatment, even if the patient had already been admitted to hospital. The social worker might suggest care and treatment that did not involve detention in hospital.
I am disappointed that the Government have tabled a new clause that does not satisfy the assurances given in Committee. Even at this late stage I hope that they will reconsider. I do not believe that the Minister realised that

the assurance had not been fully honoured until my amendments were tabled. I hope that he will accept the two amendments. If he does not, I shall ask the House to vote on them.

Mr. David Ennals: I shall be brief because many of the arguments have been deployed by my hon. Friend the Member for Birmingham, Stechford (Mr. Davis). It is clear that certain assurances were given in Committee and accepted by both sides. One merit of the Committee was that it did not really comprise two different sides. The Minister has reneged on his assurances.
We must ensure that an emergency admission does not take place without the knowledge and involvement of a social worker. The words in new clause 5,
other than an emergency application",
downgrade the role of the social worker. A social worker may know a great deal about the background of someone admitted to hospital under the emergency provisions. Although a patient's social circumstances are important, the social worker may also have a professional view about how to deal with his problems. There is no logic in providing for a social report and notification to the social services department for non-emergency cases, but not for emergency cases. There is a stronger case for the involvement of a social worker in emergency cases. We need the maximum amount of knowledge to decide the necessary treatment and the place of treatment for each patient. A social worker may know the family background, which may help the doctors to decide what is best for the patient.
I hope that the Minister does not think that he will convince us on this matter. I hope that we can convince him that he is wrong. If he accepts amendments(a)and(b)he will be doing his best for the patients and also fulfilling the clear wishes of the Committee.
The social worker's report is important, as is the notification to the social services authority. The clause does not provide for the social services department to be informed immediately, which is a serious weakness. Even if the Minister does not listen to any other argument, that last argument must sway him. The wisdom of social workers can be added to the professional experience of the doctor who must decide the treatment.

Mr. Mike Thomas: I recall that the Minister gave an undertaking in Committee in the terms described by the hon. Member for Birmingham, Stechford (Mr. Davis). I said in Committee that the safeguards for patients before being admitted under section 29 might be taken further. The Minister did not agree to that, but he gave an assurance that additional safeguards would be provided. It is not reasonable for him to construe the Committee debate as supporting the term "social circumstances" which the hon. Member for Stechford proposes to replace. The hon. Gentleman's concern, which was also expressed in Committee, is that an emergency admission under section 29 could mean that a patient finds himself in the wrong place, in the wrong circumstances, with the wrong proposals for his care and treatment. Nobody seeks to supplant the medical practitioner with the social worker. However, the social worker's view is an important safeguard for the patient
I urge the Minister to accept the amendments. It would greatly facilitate the further passage of the Bill if we did not begin with a feeling that undertakings were not being honoured. There can be no serious disadvantage to anyone


if the amendments are accepted, but there will be real advantage to the patient, with whom we should be concerned.
I shall ask my hon. Friends and members of the Liberal Party to support the amendments should the House divide.

Mr. Stan Thorne: I am sorry that I was not in the Chamber to hear the Minister's statement when he moved new clause 5. My remarks may appear puzzling if he dealt with my points in his statement. The purpose of the new clause is to ensure that there is a report on the social circumstances of a patient. I support amendment(b)tabled by my hon. Friend the Member for Birmingham, Stechford (Mr. Davis), which widens the whole purpose of obtaining reports about patients prior to their treatment. The amendment refers to
the most appropriate way of providing care and medical treatment".
Is the Minister concerned only with social circumstances and not with
the most appropriate means of providing care and medical treatment?
If so, why has he included new clause 5? It contradicts matters that we shall discuss later about consultation with other professions and people concerned with the treatment of the mentally ill. In new clause 5 the Government are prepared to consider obtaining reports about social circumstances from social service departments. However, they do not appear to want the involvement of other professions in a multi-disciplinary consultation about patients and they seek to delete a clause in the Bill to provide such consultation.
I find it difficult to accept new clause 5. I hope that my hon. Friend the Member for Stechford will press amendment(b). It is of tremendous importance in protecting the interests of patients.

Mr. Geoffrey Finsberg: I do not think that I can help the hon. Member for Birmingham, Stechford (Mr. Davis). I listened carefully to his remarks and tried to align them with what my hon. Friend the Minister for Health said in Committee. He said:
The Government are not unsympathetic to the proposal, which has much to recommend it.
He asked for time to consider the precise form that the provision should take. He also spoke of the need for consultation and said:
In the light of that consultation, having found out what would work we could produce a final version.
Most important, he said:
Perhaps the Opposition would agree not to press the amendments… in exchange for the Government's assurance that they recognise the mood of the Committee and will try to meet its wishes in principle after consultation and polishing up."—[Official Report, Special Standing Committee, 13 May 1982; c. 285–6.]

Mr. Ennals: What consultation took place? Was there consultation with local authority social service departments and those who represent them or with the British Association of Social Workers, which is obviously infinitely involved? It would be helpful to know the nature of the consultations that led the hon. Gentleman to reach a conclusion different from that of his hon. and learned Friend.

5 pm

Mr. Finsberg: I shall deal with that point in a moment. My hon. and learned Friend's assurance to consider the

points that were made has, I believe, been met by new clause 5. It was not possible to agree to everything that was proposed in Committee because of the various difficulties of which I have spoken.
Let us examine the position of social workers in this context. I cannot see what else they could do other than to give their report on the social circumstances. It is for the responsible medical officer and others to decide what sort of treatment there should be. That is not a matter for the social workers.

Mr. Terry Davis: The Minister quoted the phrase "polishing up" which was used by his hon. and learned Friend. Will he please give the column reference?

Mr. Finsberg: Column 285 talks about the precise form the provision should take, and the last sentence in paragraph 4 of column 286 refers to "a final version". "Polishing up" can be found at the end of paragraph .5 in column 286.
This matter was discussed with the ACC, the local authority association, which did not raise any objections to what we have put forward in the new clause.

Mr. Mike Thomas: That reply is not good enough. To consult only one of the three local authority organisations—after all, they may have to find the extra cash for the social workers involved—is hardly an impartial consultation. The British Association of Social Workers, the British Medical Association and even the psychologists and psychiatrists might also have a view.

Mr. Finsberg: This highlights the position of a Special Standing Committee. We had preliminary hearings and received a mass of information. We then proceeded to go through the Bill to try to take account of the views that had been put to us. The organisations that made representations were surely in a position to say whether or not they were happy with what we proposed. We did not undertake formal consultations yet again, but the ACC in particular said that it had no worry at all about the proposals. I do not believe that we could have done more, short of going through a second round of detailed consultations. In the circumstances, I do not think that would have been appropriate.
Through various means, the BASW had more than one representative present at the Committee and it knew exactly what was happening. I cannot go further than that. I do not believe that the new clause resiles from the undertaking that my hon. and learned Friend gave, which is followed in the new clause.

Mr. Mike Thomas: Mr. Mike Thomas rose—

Mr. Deputy Speaker: Order. We are now on Report, and the hon. Gentleman can speak only once.

Mr. Terry: Mr. Terry Davis rose—

Mr. Deputy Speaker: The hon. Gentleman may speak again only with the, leave of the House.

Mr. Davis: With the leave of the House, I should like to speak again to the two amendments that I have tabled.
I do not accept what the Minister has said. It is my considered opinion, which I shall try to prove with the aid of Committee quotations, that the Government have resiled from their undertaking which was accepted in good faith by the Committee.
I tabled two new clauses in Committee. The first suggested that an approved social worker should determine


the most appropriate way of providing care and medical treatment. As a result of discussion in the Corridors, it became clear that the Government would oppose that new clause on the ground that they felt it suggested that a social worker should overrule a psychiatrist. They objected to the word "determine". At no time was it conveyed to me that the Government objected to the suggestion that the social worker should be involved in considering
the most appropriate way of providing care and medical treatment".
I subsequently withdrew my original new clause and tabled another. To meet the Government's objections, I specifically provided that the approved social worker should "consider"
the most appropriate way to provide care and medical treatment".
During our discussion in Committee I made the intention of the new clause absolutely clear. I said:
New clause 8 seeks to provide for a case where someone is admitted compulsorily to a hospital under sections 25 and 26 and has had no consideration by an approved social worker. In such a case, hospital managers must, within 24 hours, refer the application to an approved social worker who shall interview the patient and consider the most appropriate way to provide care and medical treatment.
I proceeded to explain why I had dropped the word "determine" and substituted the word "consider". I then added:
It is now clear that the approved social worker would 'consider' the most appropriate way to provide care and medical treatment and would then report the results of his consideration. That does not mean that the responsible medical officer has to do what the social worker suggests, but it does mean that the views and results of consideration by the approved social worker will be available to him, which I consider wholly desirable".
I went on to state:
In new clause 8, I have sought to provide that the hospital managers will ask a social worker to consider the most appropriate way to provide care and medical treatment only when the application has come from a nearest relative rather than an approved social worker."—[Official Report, Special Standing Committee, 13 May 1982; c. 281–82.]
In his reply, the Minister for Health said:
I shall make my understanding of the proposal now before us clear, because I shall ask to be allowed to draft a form of words to meet the hon. Gentleman's requirements. I understand"—
that is, the Minister for Health understands—
that the present suggestion is that in the case of a patient who has been admitted on the application of a nearest relative alone, without the involvement of a social worker, the advice and opinion of a social worker should be obtained as soon as is reasonably practicable thereafter. Although that advice could not be binding upon or overrule the professional medical opinion of a psychiatrist, it should be available and fully considered. The best treatment for a case would thus be considered on a multi-disciplinary basis rather than on that of psychiatric opinion alone.
The Government are not unsympathetic to the proposal, which has much to recommend it. I ask the Committee to allow us time to consider the precise form that the provision should take. First, there are drafting problems. The hon. Member for Stechford has refined and polished up the wording over the past few days"—
the Minister is referring to the decision to drop "determine" and to substitute "consider"— 
but I do not believe that he has it exactly right yet. Some points of practice also remain to be considered.
Later in that speech the Minister explained why he objected to the 24-hour period. I accept that. He made it clear that he had reservations about any time limit of 24 hours. He went on to say:
I have given an undertaking that the Government will consider the amendment".

He said that he would consult the directors of social services, the British Association of Social Workers, the Royal College of Psychiatrists and all who would have to put the provision into practice. The Minister has not told us this afternoon that any of those bodies has objected to the suggestion that an approved social worker should consider
the most appropriate way of providing care and medical treatment".
The Minister for Health went on to say:
Perhaps the Opposition would agree not to press the amendments and the new clauses in exchange for the Governments assurance that theyrecognise the mood of the Committee and will try to meet its wishes in principle after consultation and polishing up."—[Official Report, Special Standing Committee, 13 May 1982; c. 
285–86.]
I have no objection to consultation and polishing up. However, let us be absolutely clear. The Minister for Health gave an undertaking to the Committee to polish up a requirement that an approved social worker should consider
the most appropriate way of providing care and medical treatment".
This afternoon the Government have tabled an entirely different new clause which will restrict the involvement of an approved social worker to considering the "social circumstances" of the patient. That is not the same thing.

Mr. Mike Thomas: Before the hon. Gentleman leaves the question of consultation, let us be clear what the British Association of Social Workers says. Although it welcomes the improvements in the arrangements for patients admitted under sections 25 and 26, it says that the new clause
does not meet the British Association of Social Workers' demand for a full psychiatric and social assessment to be made at the time of every compulsory admission to hospital".

Mr. Davis: There is some difference between the hon. Member for Newcastle upon Tyne, East (Mr. Thomas) and myself about the extent to which a social worker should be involved. We discussed that matter in great detail in Committee and we take different views. On that point I am inclined to agree with the Government that there should not be a veto by an approved social worker on admissions to hospital. I do not believe that an approved social worker should be able to block an application for admission by a near relative.
The British Association of Social Workers seemed to have made it clear that it does not object to social workers being asked to consider
the most appropriate way of providing care and medical treatment".
Nor have we been told that the Royal College of Psychiatrists objects to that role by approved social workers. I am clear in my own mind, and I believe that it is clear to others, that this afternoon the Government have resiled from their undertaking.

Mr. Ennals: Does my hon. Friend recall that when he withdrew his first and second new clauses the Government said that they would leave emergency applications out and that all but emergencies would be covered?

Mr. Davis: Indeed, it is the opposite. In response to a question by the hon. Member for Newcastle upon Tyne, East, whether the new clause would cover emergency admissions, I made it clear that that was my intention. The debate had concentrated upon sections 25 and 26—applications for admission. That was because we


debated the issue against the background of a previous sitting, when we had discussed sections 25 and 26 and the involvement of social workers, and there had been a difference between the hon. Gentleman and myself. Therefore, we explained why this new clause was different but important. The hon. Gentleman pressed for an assurance that I did intend to include emergency applications, and that I did. It was clear from the wording of that new clause, which referred to emergency applications. It specifically used the language in the Act. It was the heading of section 29. That was quite deliberate. There could be no doubt.
There are three points of difference. The first concerned the period of 24 hours. The Government were clear about that, and I have not complained this afternoon. The Minister for Health told the Committee that he did not want to go along with the period of 24 hours. He made that crystal clear in the undertaking that he gave. However, the Minister did not say that he did not agree that an approved social worker should be involved in an application for an emergency admission. Nor did he say that an approved social worker should not consider
the most appropriate way of providing care and medical treatment".
Had he objected to either of those, there were several opportunities in Committee for him to say so. He did not say anything of the sort. We pressed him time after time, and he gave an assurance that he was with us in spirit. He did not want to be tied to a period of 24 hours, but on everything else he sympathised with what we were trying to achieve.
Frankly, I am amazed that any Minister should try to wriggle out of that undertaking. I regard it as wriggling out of and going back on an undertaking that was given to and accepted by the Committee. If we had known that the Government intended to do that, I am sure that we would have pressed it to a vote on that occasion. We might have won, because there was another amendment grouped with it on which the Government were defeated. That was amendment No. 8(a)which was added to the Bill against the Government's wishes because a Conservative Member voted with the Opposition in Committee. We would have pressed this issue to the vote, in the hope of winning, if we had known that the Government did not mean what they said.
I am not accusing the Minister of bad faith. I am sure that in Committee he did agree with us and did intend to do what he said. It is only now that we find that the clause, drafted by civil servants, does not meet the undertaking that he gave to the Committee. Having had it proved to him this afternoon, I am amazed that he does not stand up and accept amendments(a)and ((b). We shall certainly press them to a Division if he does not.

Mr. Christopher Price: I did not enter into the debate in Committee but I have listened to the whole of this debate. Even at this late stage, I would urge the Minister to think carefully about this matter. It is important that our parliamentary procedures should work properly and that pledges given in Committee should be redeemed on Report. If that is not done, we cannot legislate in an orderly fashion.
There was an incident last year in which the hon. Member for Louth (Mr. Brotherton) was involved. Because he felt so strongly he voted against the Government on the Contempt of Court Act in the previous

Session. That was right. When Ministers say in Committee that they will do something they should redeem their promises.
I should like to make a suggestion. I may not get a response from the Minister, although I am sure that the House would give the Minister leave to speak again. The Bill is not finished with. These new clauses must go to another place. I appeal to the Minister to think, even at this late stage, about his pledges. I see him re-reading them with enormous assiduity on the Front Bench. I ask him to think on those promises that he gave in Committee and to consider once more whether he will advise the House to help him to go back on promises which he gave.
Quite apart from the procedural issue, this is a matter of real substance. We do not want section 29 to be used as a loophole again as a way of excluding social workers. There is no doubt at all that that is what it will be used for by collusion between the various authorities who do not wish to involve social workers or any multi-disciplinary approach to this issue. I appeal to the Minister—he can even intervene if he does riot wish to seek the leave of the House to speak again—to think carefully about what he is asking the House to do. It will set a bad precedent for this and for future debates, and will harm the Government's reputation.

Mr. Kenneth Clarke: I shall intervene briefly in response to all the requests that have been made, because the undertakings that I gave in Committee are being referred to.
I am grateful to the hon. Member for Birmingham, Stechford (Mr. Davis) for making it clear that he makes no personal accusation against me. We are arguing about the way in which an undertaking has been honoured. As we shall see, the Government have honoured all the undertakings they gave in Committee. With two minor exceptions, we have accepted all the defeats that both sides of the Committee inflicted on the Government during our proceedings. The Special Standing Committee reconstructed and redrafted much of the Bill, and there has been no attempt to go back on that.
I shall not repeat the words given in my defence by my hon. Friend the Under-Secretary of State. On the text that I have before me he has marked the quotations about the form in which the undertaking was given, and they make it clear that we undertook to go away and to meet the principle of what was being suggested, but that we would have to consider the practicalities and details not only of the 24 hours—which I expressly gave as an example—but of the rest. I remind the House that I said:
The Government are not unsympathetic to the proposal, which has much to recommend it. I ask the Committee to allow us time to consider the precise form that the provision should take. First, there are drafting problems … Some points of practice also remain to be considered."—[Official Report, Special Standing Committee, 13 May 1982; c. 285.]
My hon. Friend the Under-Secretary has given our considered view—[Interruption.] I could cite more quotations but it will take up the time of the House. For example, one quotation in c. 287 has not yet been used. In Committee, I said:
Therefore, we shall reconsider the practicalities of the issue. I hope that we shall come back to the Committee with something which meets the strongly expressed wishes of members of both sides of the Committee.
The hon. Member for Newcastle upon Tyne, East (Mr. Thomas) then tried to press me about the provision relating to emergency admissions and he received a reply—which


appears at the foot of c. 287—that I shall not read in full unless I am pressed. I have to confess that it is more waffle than substance, because at that stage I was not prepared off the cuff to give the precise assurance that he sought. As I said,
We are dealing with the generality of cases."—[Official Report, Special Standing Committee, 13 May 1982; c. 287.]

Mr. Mike Thomas: Mr. Mike Thomas rose—

Mr. Ennals: Mr. Ennals rose—

Mr. Clarke: We have sought to put into practice the views that were expressed strongly by hon. Members on both sides of the Committee. We believe that the new clause meets the undertaking given. It may be of significance and of some reassurance to Opposition Members that I have been told that the British Association of Social Workers and the Association of Directors of Social Services are content with new clause 5. Indeed, we have been consulting, as I told the Committee that we would have to do.
As my hon. Friend the Under-Secretary explained, we now think that the provision meets the wishes of the Committee and is consistent with common sense and with the practicalities involved.

Mr. Terry Davis: Perhaps the Minister will read what was said about the practicalities. I am not suggesting that it is all put on the record, because those who are interested can read what was said and form their own opinions. However, the Minister must agree that his reference to practicalities came after an assurance that was given either to his hon. Friend the Member for Abingdon (Mr. Benyon) or to his hon. Friend the Member for Basildon (Mr. Proctor) concerning the resource implications for the employment of more social workers. He said that he would want to discuss the resource implication and added:
Therefore, we shall reconsider the practicalities of the issue."—[Official Report, Special Standing Committee, 13 May 1982; c. 287.]
It was not a question of considering the practicalities of the report on the appropriate way of providing care and medical treatment. The Minister should not try to read that into it. I have quoted from the proceedings round the quotations given by the Under-Secretary. I believe that those who read the full text of that debate and the record of this afternoon's debate in Hansard will come to the conclusion that the Minister gave an undertaking and I am very sorry that he has adopted this attitude.

Question put and agreed to.
Clause read a Second time.
Amendment (a) proposed to the proposed clause, leave out from first 'application' to ' made '.—[Mr. Terry Davis.]
Question put,That the amendment be made:—
The House divided:Ayes 127, Noes 164.

Division No. 299]
[5.25 pm


AYES


Archer, Rt Hon Peter
Buchan, Norman


Ashton, Joe
Callaghan, Rt Hon J.


Atkinson, N.(H'gey,)
Campbell-Savours, Dale


Bagier, Gordon A.T.
Canavan, Dennis


Beith, A. J.
Cocks, Rt Hon M.(B'stol S)


Benn, Rt Hon Tony
Cowans, Harry


Bennett, Andrew(St'kp't N)
Craigen, J. M.(G'gow, M'hill)


Booth, Rt Hon Albert
Crowther, Stan


Bradley, Tom
Cryer, Bob


Bray, Dr Jeremy
Cunningham, G. (Islington S)





Cunningham, Dr J.(W'h'n)
Marshall, Dr Edmund(Goole)


Dalyell, Tam
Marshall, Jim(Leicester S)


Davidson, Arthur
Mason, Rt Hon Roy


Davis, Clinton(Hackney C)
Maynard, Miss Joan


Davis, Terry(B'ham, Stechf'd)
Meacher, Michael


Dean, Joseph(Leeds West)
Mikardo, Ian


Dixon, Donald
Milian, Rt Hon Bruce


Dobson, Frank
Miller, Dr M. S.(E Kilbride)


Dormand, Jack
Morris, Rt Hon A.(W'shawe)


Douglas, Dick
Morris, Rt Hon C.(O'shaw)


Duffy, A. E. P.
O'Neill, Martin


Dunwoody, Hon Mrs G.
Owen, Rt Hon Dr David


Eadie, Alex
Palmer, Arthur


Eastham, Ken
Pavitt, Laurie


Edwards, R.(W'hampt'n S E)
Pitt, William Henry


Ellis, R.(NE D'bysh're)
Powell, Raymond(Ogmore)


English, Michael
Price, C.(Lewisham W)


Ennals, Rt Hon David
Roberts, Ernest(Hackney N)


Evans, loan(Aberdare)
Robertson, George


Evans, John(Newton)
Rooker, J. W.


Ewing, Harry
Roper, John


Flannery, Martin
Ross, Ernest(Dundee West)


Foot, Rt Hon Michael
Sever, John


Ford, Ben
Silverman, Julius


Forrester, John
Skinner, Dennis


Foulkes, George
Spearing, Nigel


Freeson, Rt Hon Reginald
Steel, Rt Hon David


George, Bruce
Stoddart, David


Hamilton, W. W.(C'tral Fife)
Stott, Roger


Hardy, Peter
Thomas, Dafydd(Merioneth)


Harrison, Rt Hon Walter
Thomas, Mike(Newcastle E)


Haynes, Frank
Thomas, Dr R.(Carmarthen)


Homewood, William
Thorne, Stan(Preston South)


Hooley, Frank
Tinn, James


Howells, Geraint
Torney, Tom


Hoyle, Douglas
Varley, Rt Hon Eric G.


Hughes, Robert(Aberdeen N)
Wainwright, E.(Dearne V)

Hughes, Roy(Newport)
Wainwright, R.(Colne V)

Jenkins, Rt Hon Roy(Hillh'd)
Watkins, David

Johnston, Russell(Inverness)
Weetch, Ken

Jones, Barry(East Flint)
Wellbeloved, James


Kerr, Russell
Welsh, Michael


Lamond, James
White, Frank R.


Leighton, Ronald
Whitehead, Phillip


Lestor, Miss Joan
Whitlock, William


Lewis, Ron(Carlisle)
Wigley, Dafydd


Lofthouse, Geoffrey
Wilson, William(C'try SE)


McCartney, Hugh
Winnick, David


McDonald, Dr Oonagh
Woolmer, Kenneth


McKay, Allen(Penistone)
Wright, Sheila


McKelvey, William
Young, David(Bolton E)


McNally, Thomas



McNamara, Kevin
Tellers for the Ayes:


McTaggart, Robert
Mr. James Hamilton and


McWilliam, John
Mr. George Morton.


Marshall, D(G'gow S'ton)





NOES


Alexander, Richard
Chalker, Mrs. Lynda


Alison, Rt Hon Michael
Chapman, Sydney


Atkins, Rt Hon H.(S'thorne)
Clark, Hon A.(Plym'th, S'n)


Atkinson, David(B'm'th,E)
Clarke, Kenneth(Rushcliffe)


Baker, Nicholas(N Dorset)
Cockeram, Eric


Bendall, Vivian
Cope, John


Benyon, Thomas(A'don)
Cormack, Patrick


Berry, Hon Anthony
Costain, Sir Albert


Biggs-Davison, Sir John
Cranborne, Viscount


Blackburn, John
Crouch, David


Boscawen, Hon Robert
Dickens, Geoffrey


Bottom ley, Peter(W'wich W)
Douglas-Hamilton, Lord J.


Bright, Graham
Dunn, Robert(Dartford)


Brinton, Tim
Eden, Rt Hon Sir John


Brotherton, Michael
Fairgrieve, Sir Russell


Brown, Michael(Brigg &amp; Sc'n)
Faith, Mrs Sheila


Browne, John(Winchester)
Fell, Sir Anthony


Bruce-Gardyne, John
Finsberg, Geoffrey


Buck, Antony
Fookes, Miss Janet


Budgen, Nick
Forman, Nigel


Burden, Sir Frederick
Fowler, Rt Hon Norman


Carlisle, John(Luton West)
Fry, Peter






Gardiner, George(Reigate)
Morrison, Hon C.(Devizes)


Goodhart, Sir Philip
Murphy, Christopher


Goodhew, Sir Victor
Neale, Gerrard


Goodlad, Alastair
Needham, Richard


Gorst, John
Neubert, Michael


Gow, Ian
Newton, Tony


Grant, Anthony(Harrow C)
Page, John(Harrow, West)


Greenway, Harry
Page, Richard(SW Herts)


Grieve, Percy
Parris, Matthew


Griffiths, Peter Portsm'th N)
Pattie, Geoffrey


Grist, Ian
Percival, Sir Ian


Grylls, Michael
Pollock, Alexander


Hamilton, Hon A.
Price, Sir David(Eastleigh)


Hamilton, Michael(Salisbury)
Proctor, K. Harvey


Hampson, Dr Keith
Raison, Rt Hon Timothy


Hannam, John
Rathbone, Tim


Haselhurst, Alan
Rees-Davies, W. R.


Heddle, John
Renton, Tim


Henderson, Barry
Rhys Williams, Sir Brandon


Hill, James
Ridsdale, Sir Julian


Hogg, Hon Douglas(Gr'th'm)
Roberts, M.(Cardiff NW)


Holland, Philip(Carlton)
Rossi, Hugh


Hooson, Tom
Rumbold, Mrs A. C. R.


Howell, Ralph(N Norfolk)
Sainsbury, Hon Timothy


Hunt, David(Wirral)
Shaw, Giles(Pudsey)


Irvine, Bryant Godman
Shaw, Sir Michael(Scarb')


Jenkin, Rt Hon Patrick
Shepherd, Cohn(Hereford)


Jessel, Toby
Silvester, Fred


Jopling, Rt Hon Michael
Sims, Roger


Kershaw, Sir Anthony
Skeet, T. H. H.


King, Rt Hon Tom
Smith, Tim(Beaconsfield)


Kitson, Sir Timothy
Speed, Keith


Knight, Mrs Jill
Speller, Tony


Lang, Ian
Spicer, Jim(West Dorset)


Lawrence, Ivan
Spicer, Michael(S Worcs)


Lennox-Boyd, Hon Mark
Squire, Robin


Lester, Jim(Beeston)
Stanbrook, Ivor


Lewis, Kenneth(Rutland)
Steen, Anthony


Lloyd, Peter(Fareham)
Stevens, Martin


Loveridge, John
Stradling Thomas, J.


Luce, Richard
Temple-Morris, Peter


Lyell, Nicholas
Thomas, Rt Hon Peter


McCrindle, Robert
Thompson, Donald


Macfarlane, Neil
Thornton, Malcolm


MacKay, John(Argyll)
Townend, John(Bridlington)


Macmillan, Rt Hon M.
Trippier, David


McNair-Wilson, M.(N'bury)
van Straubenzee, Sir W.


McNair-Wilson, P.(New F'st)
Viggers, Peter


Madel, David
Waddington, David


Major, John
Waller, Gary


Marlow, Antony
Ward, John


Mather, Carol
Watson, John


Maude, Rt Hon Sir Angus
Wells, Bowen


Mawby, Ray
Wells, John(Maidstone)


Mawhinney, Dr Brian
Wheeler, John


Maxwell-Hyslop, Robin
Wickenden, Keith


Mayhew, Patrick
Wolfson, Mark


Mellor, David
Young, Sir George(Acton)


Meyer, Sir Anthony



Mills, lain(Meriden)
Tellers for the Noes:


Mills, Sir Peter(West Devon)
Mr. Peter Brooke and


Moate, Roger
Mr. Tristan Garel-Jones.

Question accordingly negatived.
Amendment (b)proposed to the proposed clause, leave out 'his social circumstances' and insert
'the most appropriate way of providing care and medical treatmene.—[Mr. Terry Davis.]
Question put, That the amendment be made:—
The House divided:Ayes 124, Noes 160.

Division No. 300]
[5.35 pm


AYES


Archer, Rt Hon Peter
Benn, Rt Hon Tony


Ashton, Joe
Bennett, Andrew(St'kp't N)


Atkinson, N.(H'gey,)
Booth, Rt Hon Albert


Bagier, Gordon A.T.
Bradley, Tom


Beith, A. J.
Bray, Dr Jeremy





Buchan, Norman
McWilliam, John


Callaghan, Rt Hon J.
Marshall, D(G'gow S'ton)


Campbell-Savours, Dale
Marshall, Jim(Leicester S)


Canavan, Dennis
Mason, Rt Hon Roy


Cocks, Rt Hon M.(B'stol S)
Maynard, Miss Joan


Cowans, Harry
Meacher, Michael


Craigen, J. M.(G'gow, M'hill)
Mikardo, Ian


Crowther, Stan
Milian, Rt Hon Bruce


Cryer, Bob
Miller, Dr M. S.(E Kilbride)


Cunningham, G.(Islington S)
Morris, Rt Hon A.(Wrshawe)


Cunningham, Dr J.(W'h'n)
Morris, Rt Hon C.(O'shaw)


Dalyell, Tam
Morton, George


Davidson, Arthur
O'Neill, Martin


Davis, Terry(B'ham, Stechf'd)
Owen, Rt Hon Dr David


Dean, Joseph(Leeds West)
Palmer, Arthur


Dixon, Donald
Pavitt, Laurie


Dobson, Frank
Pitt, William Henry


Dormand, Jack
Powell, Raymond(Ogmore)


Douglas, Dick
Price, C.(Lewisham W)


Duffy, A. E. P.
Radice, Giles


Dunwoody, Hon MN G.
Roberts, Ernest(Hackney N)


Eadie, Alex
Robertson, George


Eastham, Ken
Rooker, J. W.


Ellis, R.(NE D'bysh're)
Roper, John


English, Michael
Ross, Ernest(Dundee West)


Ennals, Rt Hon David
Sever, John


Evans, loan(Aberdare)
Silverman, Julius


Evans, John(Newton)
Skinner, Dennis


Ewing, Harry
Spearing, Nigel


Flannery, Martin
Spriggs, Leslie


Foot, Rt Hon Michael
Steel, Rt Hon David


Ford, Ben
Stoddart, David


Forrester, John
Stott, Roger


Freeson, Rt Hon Reginald
Thomas, Dafydd(Merioneth)


George, Bruce
Thomas, Mike(Newcastle E)


Hamilton, James(Bothwell)
Thomas, Dr R.(Carmarthen)


Hamilton, W. W.(C'tral Fife)
Thorne, Stan(Preston South)


Hardy, Peter
Tinn, James


Harrison, Rt Hon Walter
Torney, Tom


Homewood, William
Varley, Rt Hon Eric G.


Hooley, Frank
Wainwright, E.(Dearne V)


Howells, Geraint
Wainwright, R.(Colne V)


Hoyle, Douglas
Watkins, David


Hughes, Robert(Aberdeen N)
Weetch, Ken


Hughes, Roy(Newpert)
Wellbeloved, James


Johnston, Russell(Inverness)
Welsh, Michael


Jones, Barry(East Flint)
White, Frank R.


Kerr, Russell
Whitehead, Phillip


Lamond, James
Whitlock, William


Leighton, Ronald
Wigley, Dafydd


Lestor, Miss Joan
Wilson, William(C'try SE)


Lewis, Ron(Carlisle)
Winnick, David


Lofthouse, Geoffrey
Woolmer, Kenneth


McCartney, Hugh
Wright, Sheila


McDonald, Dr Oonagh
Young, David(Bolton E)


McKay, Allen(Penistone)



McKelvey, William
Tellers for the Ayes:


McNally, Thomas
Dr. Edmund Marshall and


McNamara, Kevin
Mr. Frank Haynes.




NOES


Alexander, Richard
Carlisle, John(Luton West)


Alison, Rt Hon Michael
Chalker, Mrs. Lynda


Atkins, Rt Hon H.(S'thorne)
Chapman, Sydney


Atkinson, David(B'm''h,E)
Clark, Hon A.(Plym'th, S'n)


Baker, Nicholas(N Dcrset)
Clarke, Kenneth(Rushcliffe)


Bendall, Vivian
Cockeram, Eric


Benyon, Thomas(A'don)
Colvin, Michael


Berry, Hon Anthony
Cope, John


Biggs-Davison, Sir John
Cormack, Patrick


Blackburn, John
Costain, Sir Albert


Bottomley, Peter(W'wich W)
Cranborne, Viscount


Bright, Graham
Crouch, David


Brinton, Tim
Dickens, Geoffrey


Brotherton, Michael
Douglas-Hamilton, Lord J.


Brown, Michael(Brigg &amp; Sc'n)
Dunn, Robert(Dartford)


Browne, John(Winchester)
Eden, Rt Hon Sir John


Buck, Antony
Fairgrieve, Sir Russell


Budgen, Nick
Faith, Mrs Sheila


Burden, Sir Frederick
Fell, Sir Anthony






Fookes, Miss Janet
Mills, lain(Meriden)


Forman, Nigel
Mills, Sir Peter(West Devon)


Fowler, Rt Hon Norman
Moate, Roger


Fry, Peter
Morrison, Hon C.(Devizes)


Gardiner, George(Reigate)
Murphy, Christopher


Garel-Jones, Tristan
Neale, Gerrard


Goodhart, Sir Philip
Needham, Richard


Goodhew, Sir Victor
Neubert, Michael


Goodlad, Alastair
Newton, Tony


Gorst, John
Page, John(Harrow, West)


Gow, Ian
Page, Richard(SW Herts)


Grant, Anthony(Harrow C)
Parris, Matthew


Greenway, Harry
Pattie, Geoffrey


Grieve, Percy
Percival, Sir Ian


Griffiths, Peter Portsm'th N)
Pollock, Alexander


Grist, Ian
Price, Sir David(Eastleigh)


Grylls, Michael
Proctor, K. Harvey


Hamilton, Hon A.
Rathbone, Tim


Hamilton, Michael(Salisbury)
Rees-Davies, W. R.


Hampson, Dr Keith
Renton, Tim


Hannam, John
Rhys Williams, Sir Brandon


Haselhurst, Alan
Ridsdale, Sir Julian


Heddle, John
Roberts, M.(Cardiff NW)


Henderson, Barry
Rossi, Hugh


Hill, James
Rumbold, Mrs A. C. R.


Hogg, Hon Douglas(Gr'th'm)
Sainsbury, Hon Timothy


Holland, Philip(Carlton)
Shaw, Giles(Pudsey)


Hooson, Tom
Shaw, Sir Michael(Scarb')


Howell, Ralph(N Norfolk)
Shepherd, Colin(Hereford)


Hunt, David(Wirral)
Sims, Roger


Irvine, Bryant Godman
Skeet, T. H. H.


Jessel, Toby
Smith, Tim(Beaconsfield)


Jopling, Rt Hon Michael
Speed, Keith


Kershaw, Sir Anthony
Speller, Tony


King, Rt Hon Tom
Spicer, Jim(West Dorset)


Kitson, Sir Timothy
Spicer, Michael(S Worcs)


Knight, Mrs Jill
Squire, Robin


Lang, Ian
Stanbrook, Ivor


Lawrence, Ivan
Steen, Anthony


Lennox-Boyd, Hon Mark
Stevens, Martin


Lester, Jim(Beeston)
Stradling Thomas, J.


Lewis, Kenneth(Rutland)
Temple-Morris, Peter


Lloyd, Peter(Fareham)
Thomas, Rt Hon Peter


Loveridge, John
Thompson, Donald


Luce, Richard
Thornton, Malcolm


Lyell, Nicholas
Townend, John(Bridlington)


McCrindle, Robert
Trippier, David


Macfarlane, Neil
van Straubenzee, Sir W.


MacKay, John(Argyll)
Viggers, Peter


Macmillan, Rt Hon M.
Waddington, David


McNair-Wilson, M.(N'bury)
Waller, Gary


McNair-Wilson, P.(New F'st)
Ward, John


Madel, David
Watson, John


Major, John
Wells, Bowen


Marlow, Antony
Wells, John(Maidstone)


Mather, Carol
Wheeler, John


Maude, Rt Hon Sir Angus
Wickenden, Keith


Mawby, Ray
Wolfson, Mark


Mawhinney, Dr Brian
Young, Sir George(Acton)


Maxwell-Hyslop, Robin



Mayhew, Patrick
Tellers for the Noes:


Mellor, David
Mr. Peter Brooke and


Meyer, Sir Anthony
Mr. Robert Boscawen.

Question accordingly negatived.
Clause added to the Bill.

New Clause 6

REVIEW OF TREATMENT

.—(1) Where a patient is given treatment in accordance with section 41(2) or 42(3)(b)above a report on the treatment and the patient's condition shall be given by the responsible medical officer to the Secretary of State—

(a)on the next occasion on which the responsible medical officer furnishes a report in respect of the patient under section 43(3) of the principal Act (renewal of authority for detention); and

(b)at any other time if so required by the Secretary of State.

(2) In relation to a patient who is subject to a restriction order or restriction direction subsection (1) above shall have effect as if paragraph(a)required the report to be made—

(a)in the case of treatment in the period of six months beginning with the date of the order of direction, at the end of that period;
(b)in the case of treatment at any subsequent time, on the next occasion on which the responsible medical officer makes a report in respect of the patient under section 27(3) above.

(3) The Secretary of State may at any time give a notice to the responsible medical officer directing that, subject to section 45 below, a certificate given in respect of a patient under section 41(2) or 42(3)(b)above shall not apply to treatment given to him after a date specified in the notice and sections 41 and 42 above shall then apply to any such treatment as if that certificate had not been given.'.—[Mr. Kenneth Clarke.]

Brought up, and read the First time.

Mr. Kenneth Clarke: I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker: With this, it will be convenient to take the following amendments:

(a)to new clause 6, subsection (1), leave out paragraph(b)and insert—
'on the expiration of six months from the report furnished under Subsection (a) above and'.
No. 22, in clause 40, page 29, line 29 at end add 
'and shall be valid for a limited period, which shall be specified in each case'.
No. 29, in clause 42, page 30, line 25, at end insert 
'or since the date when a certificate was last issued under this section'.
Government amendments Nos. 41 and 60. I understand that there is a misprint in amendment(a)to new clause 6 and that the word "paragraph" should not be present.

Mr. Clarke: Once we reach this new clause we touch for the first time this evening on one of the most important parts of the Bill, part VI, which is, I believe, a welcome codification of the law on consent for treatment of detained patients. This has always been one of the most difficult areas for those interested in the subject. The question arises how far it is right to give treatment against their will to patients who are also detained against their will in mental hospitals.
In ordinary medical treatment, the patient is given treatment only when he consents to it. In the case of the mentally ill, there are occasions when patients are so ill that they lack proper insight into their own condition and possible remedies to it. For reasons connected with, and caused by, their own illness, they refuse to consent to treatment from which they would benefit. It is plainly wrong if medical and other professional staff have to stand by and watch a patient suffer when they know that the patient could be treated and discharged from hospital if treatment were given. There are some circumstances when it is right that those professional staff should go ahead and give treatment when this is essential in the patient's own interest without that patient's consent. It is equally important that there should be careful safeguards given to the patients, their relatives and those concerned with their well-being, to make sure that this is not abused.
The Standing Committee considered this part of the Bill with care. Before us now is a substantial redrafting of the Bill from the other place. It is a redrafting, I believe, that commands wide support now on both sides of the House. It sets out carefully that although certain basic treatments can be given to detained patients without their consent, there are other treatments that should be given only with


their consent or with an independent second opinion from a psychiatrist appointed by the Mental Health Act Commission. It was also agreed that some treatments are so serious that they should be given not only with the patient's consent, but with an independent second opinion.
New clause 6 contains the details of our proposals and, I believe, meets a commitment that I gave in Committee to the hon. Member for Birmingham, Stechford (Mr. Davis) to provide for periodic reviews of treatment given without a patient's consent. Everybody agreed that there are cases where it is proper for such treatment to be given, as long as a second opinion has been obtained, but the Committee was anxious to ensure that when a second opinion had been given to enable a serious course of treatment to be undertaken without a patient's consent it should not be a timeless authorisation for the treatment to continue, but should be subject to periodic review.
The hon. Member for Stechford proposed in Committee a single review after six months. The new clause provides that when treatment is given under the authority of a second opinion the patient's responsible medical officer must send reports to the commission at the times when detention is renewed. As a result of the changes that the Bill makes to the periods for which detention can last before it is reviewed, that will mean after six months, after a further six months and then once a year. The responsible medical officer would also send reports at any other time when the commission required him to do so. The timing would be the same for restricted patients, though it is linked to a different statutory provision.
The commision will have the power to give notice to a patient's responsible medical officer that a certificate given by an independent psychiatrist should cease to apply. If the RMO wishes to continue the treatment he will have to obtain a fresh second opinion from an independent psychiatrist. The provision enables the commission to make sure that there is another look at the treatment plan if it wishes that to happen. It will be for the commission to decide the grounds on which it wishes to take action.
The new clause achieves the effect that I have described and gives the functions to the Secretary of State, but amendment No. 60 requires the Secretary of State to direct the MHAC to perform them on his behalf. Amendment No. 41 is a consequential drafting amendment.
Amendment(a)in the names of the hon. Members for Stechford and Lewisham, West (Mr. Price) would require reports every six months instead of once a year. I advise the House not to accept the amendment—for practical reasons and not because of any disagreement over principle. As I said, the origin of the new clause is that the Committee agreed that there should be a periodic review of treatments that are being continued only because of an independent second opinion.
We have to be practical and we must avoid deluging the commission with frequent paperwork. As the evening goes on, there will be repeated attempts by hon. Members to strengthen the protection for formal and informal patients, and most will involve fresh obligations being placed on the MHAC. Some will be conceded by the Government, as were some in Committee, but we have to avoid going so far that the effectiveness of the commission in pursuing its main objectives is weakened by overburdensome statutory requirements.
I suggest that the timing in the new clause makes good sense, because it links the review of treatment with the renewal of detention or, in the case of a restricted patient,

with the statutory report to the Home Office. That provides a logical and simple administrative basis for the reports. If the commission decides that it wants reports on longterm patients more often than once a year it is empowered to ask for them. It is at liberty to do what the Opposition wish to require it to do.
However, the commission might, for example, wish to use the power to ask for extra reports very selectively, which was a possibility considered by the hon. Member for Stechford in Committee. If the treatment in question were particularly controversial or if the independent psychiatrist thought that there were special factors that should be looked at again after a short time, the commission could ask for a more frequent review.
I hope that the House will accept the new clause as a useful addition and will agree that it is preferable to amendments Nos. 22 and 29 in the name of the hon. Member for Croydon, North-West (Mr. Pitt). They deal with broadly the same points and offer another solution by putting set limits on the duration of certificates authorising treatment without consent. I believe that that is unnecessary and that it would be inflexible. Indeed, it has been overtaken by the proposals in the new clause. I say to the hon. Gentleman and those who agree with him what I have been saying, by implication, to the hon. Member for Stechford. There is nothing in the Bill to stop an independent psychiatrist putting a time limit on a certificate. If he thinks that it is an unusual or difficult decision he can specify whatever time limit he deems appropriate, but there is no need to require that in every case.
Similarly, in the case of a period review by the MHAC, the commission could, if it judged it right, call for more frequent reviews, but the statutory requirements proposed in the new clause should meet the fears expressed in Committee and make a useful addition to this important part of the Bill.

Mr. Terry Davis: In view of my comments in the previous debate, I am glad to be able to tell the Minister that he has honoured completely the undertaking that he gave in Committee. As was pointed out by Mr. Deputy Speaker, there is a printing error on the Amendment Paper. The purpose of amendment(a)is not to leave out the whole of paragraph(b), but to add to it a requirement that a review should take place every six months, or more frequently if the commission wished.
We welcome the new clause. As I said, it meets an undertaking given in Committee in response to a debate in which I suggested a similar requirement. It was agreed on both sides of the Committee that when it had beer, agreed that treatment should be given it would be wrong for the permission to apply for ever and a day, without any review. When we noticed that loophole in the drafting we agreed unanimously that it should be blocked and that there should be provision for a periodic review of treatment or the plan of treatment.
I should be grateful if the Minister would clarify one or two points in his speech that I found a little confusing. He seemed to be taking about cases where treatment is given without consent, but the clause would also apply to cases where treatment is given with consent, but a second opinion is required. It would cover treatments given under clause 41 as well as those given under clause 42. It is important to make the point that it covers all treatment under clause 41, which must be given with consent and a


second opinion, and treatments under clause 42, which are given as the result of a second opinion, without the consent of the patient. All would have to be reviewed periodically. I am sure that that is the intention of the new clause; it was certainly the intention of the Committee.
I shall also be grateful if the Minister will examine the frequency with which the reviews will take place. I think that he said that the effect of the new clause would be to require a review after six months, after a further six months and then annually. My understanding of the new clause is that once the second opinion has been given it would run for six months, or it might be three months in the case of medicines where treatment has already been given for three months under what is called the "carte blanche" provision for psychiatrists to give treatment for three months without consent or second opinion.
6 pm
In those—we hope—limited cases, there would be a review at the end of six months from the date of admission to the hospital—that is, three months after the second opinion has been given. However, that is a narrow point. My main concern is that, in the case of most patients, does it mean that there will be a review six months after the treatment has begun, or six months after admission, and thereafter at a 12-monthly interval? In other words, it is first six months and then 12 months, because that ties in with the renewal of detention. I think that I have understood the position correctly, but the Minister said something slightly different in his speech.
I am glad that the doctor giving the second opinion can put a time limit on the permission for treatment to be given against the refusal of consent. That is important. It is also important to emphasise that the Minister said that the Mental Health Act Commission could interfere and require a review more frequently than six or 12 months. That, too, is a useful protection for patients where the treatment may be controversial or where there is a question concerning either the nature of the treatment or its appropriate use for a particular patient.
We are discussing an important protection. It is a matter of judgment. I accept that when we raised the matter in Committee the Minister, with his usual precision, gave an undertaking to examine it. He told the Committee that he did not wish to mislead me into believing that he accepted a six-month period as appropriate for review. That, I think, was a trailer to the new clause which is before us today. providing for a less frequent review. However, it is a matter of opinion and judgment as to whether treatment should be reviewed after six months, and after every six months, or after 12 months.
The idea of a review was the result of the informal discussion, or seminar, which took place on the day of President Reagan's visit to Westminster, when some hon. Members from both sides of the Committee met many people representing interest groups and professions. It is important to put on record that the suggestion for a periodic review came from the psychiatrists at that meeting. They recognised that it would be wrong to give psychiatrists a permission which, in effect, would run for ever, and that there should be some cheek on the appropriateness of a treatment for a particular patient. I emphasise, as I did in Committee, that the psychiatrists who took part in that discussion suggested that the review

should be on a 12-monthly basis, whenever the authority for detention is renewed. However, it is my view and that of my hon. Friends that it should be more frequent. We believe that six months is a more appropriate period. It is a matter of judgment. That is the view that I and many of my hon. Friends take, but we shall of course listen to the debate on the matter.

Mr. K. Harvey Proctor: I do not wish to delay the House long on new clause 6, but I want to congratulate the Government on tabling it, following the undertakings given by my hon. and learned Friend the Minister for Health at c. 804 in the Special Standing Committee. As he said, part VI is one of the most important parts of the Bill, in that it protects the rights of mentally ill patients. However, it is also right to point out that it is on top of the existing ordinary safeguards that apply to any patient and does not override those rights. For example, there is no reason why, in the first three months or at any other time, the patient should not be entitled to make a complaint either inside the hospital, or to his Member of Parliament, or to the Mental Health Act Commission when it is established. He could use the general procedure for clinical complaints. However it is essential that the Bill should address itself specifically to the extra rights that we believe the mentally ill should have.
May I also say how very much clearer is the present drafting of the clauses, compared with the drafting that came from another place. The Government are to be congratulated on the clarity of the clauses in part VI, in particular.
However, I want to ask three questions about the new clause which I, as a layman, read in a slightly different way from my hon. and learned Friend, particularly when it comes to the words "on the next occasion". To me, that seems to mean that there would be only one "next occasion", not a succession of "next occasions". I hope that my hon. and learned Friend will be able to put my mind at rest. Perhaps the draftsmen have spotted something which I, as a layman, have not seen.
Am I right in thinking that subsection (1) of the new clause provides for
a report on the treatment and the patient's condition
to be given by two responsible medical officers to the Secretary of State on the next occasion when the authority to detain the patient is renewed after the treatment given 
in acordance with section 41(2) or 42(3)(b)
but not thereafter on a regular basis at each subsequent renewal of authority, and only when the Secretary of State requests it?
My second question is: Am I right in thinking that subsection (2) means that patients subject to section 65 and section 74 restriction orders will be subject to the kind of report referred to in my earlier question at the end of their first six months' detention if they receive the relevant treatment in that period, or
in the case of treatment at any subsequent time, on the next occasion on which … a report
is made to the Home Secretary under section 27(3), but on no subsequent occasions?
Finally, I am not sure whether the new clause gives full effect to the Minister's intention, as expressed in the Special Standing Committee on 29 June 1982, when he said:
the MHAC should be informed about the status of the patient
—withholding consent for drug treatment—


at steady intervals".—[Official Report, Special Standing Committee, 29 June 1982; c. 804.]
If such a report is filed and the patient still objects, does the Secretary of State envisage that the commission, as a matter of course, would seek a new second opinion, or does it have discretion?
So, while I congratulate my hon. and learned Friend and the Under-Secretary of State on the new clause and amendments, for which we are all grateful, I shall be very happy to hear his answers to my questions.

Mr. Kenneth Clarke: I am grateful for the manner in which the new clause and amendments have been received and I shall do my best to answer the matters that have been raised.
First, I thank my hon. Friend the Member for Basildon (Mr. Proctor) for saying that this part of the Bill, as rewritten in Committee, is much clearer, thus enabling Parliament to be certain about what the Bill intends. I am sure that it will be much clearer also to those outside who are bound by the law in considering how to deal with these difficult cases.
The much improved drafting in response to the debates and suggestions in Committee make it easier for me to answer more exactly the first query of the hon. Member for Birmingham, Stechford (Mr. Davis). His understanding of the position was correct. New clause 6 applies to section 41(2), dealing with the most serious treatments requiring the patient's consent and a second opinion. It also applies to section 42(3)(b), which covers slightly less serious treatments, where the patient does not consent but where treatment can be given with a second opinion if a medical practitioner certifies that the patient is incapable of understanding the nature, purpose and likely effects of the treatment. Thus it applies to both those cases.
For the reasons that I have given, we have tied the dates of the periodic reviews exactly to the periods after which the authority for detention will be reviewed and a case can be referred to the Mental Health Act Commission. Another reform that we have introduced in the Bill is to shorten the periods of review so that they will be exactly the same as those in clause 12. The orders will be made after the first six months from the date of admission and thereafter every 12 months, as the hon. Member for Stechford understood.
The sequence of orders thereafter brings me to a point made by my hon. Friend the Member for Basildon. I am advised that where the drafting in new clause 6(1)(a)and (2)(b)reads "on the next occasion", those words apply to each subsequent occasion whenever authority for detention is renewed for each separate category of patient.
I am sorry that I used loose wording in column 804 when I said that the Mental Health Act Commission should be informed about the status of the patient at steady intervals. The intervals that we chose, which match those periods, are the intervals at which the right to continue to detain the patient should be reviewed.
Just as the Opposition suffered from a typing error in their amendment, we have suffered from a typing error in our amendment. "Section 41(2)" should read "section 41(3)". That error will not alter the substance of the debate.

Mr. William Pitt: It gives me pleasure to start my contribution on a note of accord. The reason why I and those who have supported me put down amendments Nos. 22 and 29 was that we were anxious that a certificate should have a limited life. Otherwise, a 

certificate may be held to be effective in perpetuity, which would not be good practice. Section 42 states specifically that the certificate for medicine should last for three months.
However, I welcome new clause 6, which covers all the caveats that I would have put originally. Thus, I shall delay proceedings no further. I shall not press amendments Nos. 22 and 29.

Mr. Kenneth Clarke: May I make a further intervention, Mr. Speaker? The hon. Member for Stechford and I were misleading each other. I first said that the authority for detention and the periodic reviews of treatment should be six months after the admission of the patient, followed by a further six months and intervals of 12 months thereafter. The hon. Gentleman disagreed with that and, on advice, I said that the hon. Gentleman was right. However, on further advice, I am told that the periods are six months, a further six months and further 12 months. That is the effect of clause 12 together with section 43 of the main Act.
That is my recollection of the debates in Committee, but no doubt if we have art opportunity to debate clause 12 the matter can be put beyond doubt.

Mr. Terry Davis: I am grateful for the Minister's confirmation of his earlier remarks. We have now established that this treatment will be reviewed at the end of the first six months, at the end of the second six months and thereafter at the end of each 12-month period. It is still our judgment that the review should be every six months. Therefore, we shall press our amendment to the vote. However, we accept that it is a matter of judgment. I understand the Minister's feelings and he will understand why we have not changed our views since the Committee stage.

Mr. Mike Thomas: I hesitate to delay the House, but the official Opposition spokesman should be aware that the SDP cannot support him in this matter. We shall be here all night if the hog. Gentleman persists in pursuing such narrow matters. The SDP supported him on his previous amendment, but I urge him not to press this amendment to a Division.

Question put and agreed to.

Clause read a Second time.

Amendment (a) proposed to the proposed clause, leave out '(b)' and insert —
(b)on the expiration of six months from the report furnished under Subsection (a) above and'.—[Mr. Terry Davis.]

Question put, That the amendment be made:—

The House divided:Ayes 105, Noes 173.

Division No. 301]
[6.15 pm


AYES


Archer, Rt Hon Peter
Dalyell, Tam


Ashton, Joe
Davidson, Arthur


Atkinson, N.(H'gey,)
Davis, Terry(B'ham, Stechf'd)


Bagier, Gordon A.T.
Dean, Joseph(Leeds West)


Bennett, Andrew(St'kp't N)
Dixon, Donald


Booth, Rt Hon Albel
Dobson, Frank


Callaghan, Rt Hon J.
Dormand, Jack


Campbell-Savours, Dale
Douglas, Dick


Canavan, Dennis
Duffy, A. E. P.


Cocks, Rt Hon M.(B'stol S)
Dunnett, Jack


Cowans, Harry
Dunwoody, Hon Mrs G.


Craigen, J. M.(G'gow, M'hill)
Eadie, Alex


Crowther, Stan
Eastham, Ken


Cryer, Bob
Ellis, R.(NE D'bysh're)


Cunningham, Dr J.(W'h'n)
English, Michael






Ennals, Rt Hon David
Hardy, Peter


Evans, loan(Aberdare)
Harrison, Rt Hon Walter


Evans, John(Newton)
Homewood, William


Flannery, Martin
Hooley, Frank


Ford, Ben
Hoyle, Douglas


Forrester, John
Hughes, Robert(Aberdeen N)


Freeson, Rt Hon Reginald
Hughes, Roy(Newport)


Hamilton, James(Bothwell)
Jones, Barry(East Flint)


Hamilton, W. W.(C'tral Fife)
Kerr, Russell


Lamond, James
Short, Mrs Renée


Leighton, Ronald
Silverman, Julius


Lestor, Miss Joan
Skinner, Dennis


Lewis, Ron(Carlisle)
Spearing, Nigel


Litherland, Robert
Spriggs, Leslie


Lofthouse, Geoffrey
Stoddart, David


McCartney, Hugh
Stott, Roger


McDonald, Dr Oonagh
Thomas, Dafydd(Merioneth)


McKay, Allen(Penistone)
Thomas, Dr R.(Carmarthen)


McKelvey, William
Thorne, Stan(Preston South)


McNamara, Kevin
Tinn, James


McWilliam, John
Torney, Tom


Marshall, D(G'gow S'ton)
Varley, Rt Hon Eric G.


Marshall, Jim(Leicester S)
Wainwright, E.(Dearne V)


Mason, Rt Hon Roy
Watkins, David


Maynard, Miss Joan
Weetch, Ken


Meacher, Michael
Welsh, Michael


Mikardo, Ian
White, Frank R.


Milian, Rt Hon Bruce
Whitehead, Phillip


Morris, Rt Hon A.(W'shawe)
Whitlock, William


Morris, Rt Hon C.(O'shaw)
Wigley, Dafydd


Morton, George
Wilson, William(C'try SE)


Palmer, Arthur
Winnick, David


Pavitt, Laurie
Woolmer, Kenneth


Powell, Raymond(Ogmore)
Wright, Sheila


Price, C.(Lewisham W)
Young, David(Bolton E)


Radice, Giles



Robertson, George
Tellers for the Ayes:


Rooker, J. W.
Mr. Frank Haynes and


Ross, Ernest(Dundee West)
Dr. Edmund Marshall.


Sever, John





NOES


Alexander, Richard
Douglas-Hamilton, Lord J.


Atkins, Rt Hon H.(S'thorne)
Dover, Denshore


Atkinson, David(B'm'th,E)
Dunn, Robert(Dartford)


Baker, Nicholas(N Dorset)
Eden, Rt Hon Sir John


Beith, A. J.
Edwards, Rt Hon N.(P'broke)


Benda, Vivian
Fairgrieve, Sir Russell


Benyon, Thomas(A'don)
Faith, Mrs Sheila


Berry, Hon Anthony
Fell, Sir Anthony


Best, Keith
Fookes, Miss Janet


Biggs-Davison, Sir John
Forman, Nigel


Blackburn, John
Fowler, Rt Hon Norman


Boscawen, Hon Robert
Fry, Peter


Bottomley, Peter(W'wich W)
Gardiner, George(Reigate)


Bradley, Tom
Goodhart, Sir Philip


Bright, Graham
Goodhew, Sir Victor


Brinton, Tim
Goodlad, Alastair


Brotherton, Michael
Gow, Ian


Brown, Michael(Brigg &amp;; Sc'n)
Grant, Anthony(Harrow C)


Browne, John(Winchester)
Greenway, Harry


Bruce-Gardyne, John
Grieve, Percy


Buck, Antony
Griffiths, Peter Portsm'th N)


Budgen, Nick
Grimond, Rt Hon J.


Burden, Sir Frederick
Grist, Ian


Carlisle, John(Luton West)
Grylls, Michael


Chalker, Mrs. Lynda
Hamilton, Hon A.


Chapman, Sydney
Hamilton, Michael(Salisbury)


Clark, Hon A.(Plym'th, S'n)
Hampson, Dr Keith


Clarke, Kenneth(Rushcliffe)
Hannam, John


Cockeram, Eric
Haselhurst, Alan


Colvin, Michael
Heddle, John


Cope, John
Henderson, Barry


Cormack, Patrick
Hill, James


Costain, Sir Albert
Hogg, Hon Douglas(Gr'th'm)


Cranborne, Viscount
Holland, Philip(Carlton)


Crouch, David
Hooson, Tom


Cunningham, G.(Islington S)
Howell, Ralph(N Norfolk)


Dickens, Geoffrey
Howells, Geraint





Hunt, David(Wirral)
Rathbone, Tim


Irvine, Bryant
Rees-Davies, W. R.


Godman Jessel, Toby
Renton, Tim


Johnston, Russell(Inverness)
Rhys Williams, Sir Brandon


Jopling, Rt Hon Michael
Ridsdale, Sir Julian


Kershaw, Sir Anthony
Rippon, Rt Hon Geoffrey


Kitson, Sir Timothy
Roberts, M.(Cardiff NW)


Lang, Ian
Rossi, Hugh


Lawrence, Ivan
Rumbold, Mrs A. C. R.


Lennox-Boyd, Hon Mark
Sainsbury, Hon Timothy


Lester, Jim(Beeston)
St. John-Stevas, Rt Hon N.


Lloyd, Peter(Fareham)
Shaw, Giles(Pudsey)


Loveridge, John
Shaw, Sir Michael(Scarb')


Luce, Richard
Shepherd, Colin(Hereford)


Lyell, Nicholas
Sims, Roger


McCrindle, Robert
Skeet, T. H. H.


Macfarlane, Neil
Smith, Tim(Beaconsfield)


MacKay, John(Argyll)
Speed, Keith


Macmillan, Rt Hon M.
Speller, Tony


McNair-Wilson, M.(N'bury)
Spicer, Jim(West Dorset)


McNair-Wilson, P.(New F'st)
Spicer, Michael(S Worcs)


McNally, Thomas
Squire, Robin


Madel, David
Stanbrook, Ivor


Major, John
Steel, Rt Hon David


Marlow, Antony
Steen, Anthony


Mather, Carol
Stevens, Martin


Maude, Rt Hon Sir Angus
Stradling Thomas, J.


Mawby, Ray
Temple-Morris, Peter


Mawhinney, Dr Brian
Thomas, Mike(Newcastle E)


Maxwell-Hyslop, Robin
Thomas, Rt Hon Peter


Mayhew, Patrick
Thompson, Donald


Mellor, David
Thornton, Malcolm


Meyer, Sir Anthony
Townend, John(Bridlington)


Mills, lain(Meriden)
Trippier, David


Moate, Roger van
Straubenzee, Sir W.


Morrison, Hon C.(Devizes)
Viggers, Peter


Murphy, Christopher
Waddington, David


Neale, Gerrard
Wainwright, R.(Colne V)


Needham, Richard
Waller, Gary


Neubert, Michael
Ward, John


Newton, Tony
Watson, John


Owen, Rt Hon Dr David
Wellbeloved, James


Page, John(Harrow, West)
Wells, Bowen


Page, Richard(SW Herts)
Wells, John(Maidstone)


Parris, Matthew
Wheeler, John


Pattie, Geoffrey
Wickenden, Keith


Percival, Sir Ian
Wolfson, Mark


Pitt, William Henry



Pollock, Alexander
Tellers for the Noes:


Price, Sir David(Eastleigh)
Mr. Tristan Garel-Jones and


Proctor, K. Harvey
Mr. Peter Brooke.


Raison, Rt Hon Timothy

Question accordingly negatived.

Clause added to the Bill.

New Clause 4

TREATMENT OF PATIENTS UNABLE TO BE ADMITTED TO HOSPITAL

'(1) This section applies to the following persons:

(a) An offender about whom a court was unable to make an order for his admission to hospital because it was not satisfied that arrangements had been made pursuant to either subsection (3) of section 60 of the Principal Act or subsection (4) of section 30 of this Act.
(b) An accused person whom a Crown Court was unable to remand in custody to a hospital for treatment because it was not satisfied that arrangements had been made pursuant to subsection (4) of section 29 of this Act.
(c) A person serving a sentence of imprisonment or a person to whom section 73 of the Principal Act applies and whom the Secretary of State is satisfied should be removed to and detained in hospital but about whom such a direction cannot be given because no arrangements can be made for his admission to hospital.

(2) In the event of any person to whom subsection (1) of this section applies being detained or continuing to be detained in a detention centre or a youth custody centre or a prison then any member of the Prison Medical Service may consult the Mental Health Act Commission about the medical treatment of which that person stands in need.'.—[Mr. Christopher Price.]

Brought up, and read the First time.

Mr. Christopher Price: I beg to move, That the clause be read a Second time.

Mr. Speaker: With this it will be convenient to take the following amendments:
(a), at end add—
'(3) A Community Health Council shall be entitled to receive information from the managers of the detention centre or youth custody centre or prison subject only to the same conditions as would have applied to its right of information from the managers of a hospital in which the person would have been detained.'.
(b), at end add—
'(3) Any person to whom subsection (1) of this section applies shall be entitled to receive treatment for a mental disorder from any medical practitioner who is willing to treat him.'.

Mr. Price: The new clause is supported by several of my hon. Friends and the hon. Member for Abingdon (Mr. Benyon) who was an influential and helpful member of the Standing Committee.
The new clause is much weaker than a similar new clause which was defeated in Committee. If I had tabled that new clause, it would not have been selected for discussion. All those who listened to the debate in Committee or have readHansardwill know that we won the argument, although the other side had the votes.
I shall put the argument in a nutshell. We are proposing to set up a Mental Health Act Commission comprising doctors with tremendous expertise in the treatment of mentally ill people who must lose their liberty. The doctors will have the right to go to Broadmoor, Rampton, Park Lane and Moss Side to review other doctors' decisions. That concession might be difficult for the other doctors to accept. In such circumstances, why should the commission be excluded from reviewing the comparatively few cases of individuals who are in prison but whom the courts believe should be in a mental hospital, whether that be a special hospital or an ordinary psychiatric hospital? What possible objection can there be to that?
6.30 pm
My amendment in Committee gave the commission that statutory right over prison doctors, which it has been accorded by the Government over doctors in the special hospitals and in all psychiatric hospitals. I say we won the argument although we lost the vote because the Under-Secretary of State, the hon. Member for Hampstead (Mr. Finsberg), who, I believe, would admit that this was not one of his more glorious parliamentary moments, used a particular argument throughout. His argument was that hospitals and prisons are utterly different places. Anyone who has been to Broadmoor or Rampton and has then gone immediately into prison would not accept that. They have many characteristics in common, but even if they are different the argument for the amendment is that the prisoner, the individual who is in need of psychiatric treatment, differs in no way at all, whether he is in prison or hospital, except that those in prison cannot be found hospital places.
In Committee, the Under-Secretary of State said:

Hospitals, prisons and detention centres are completely different sorts of institutions with different regimes. practices and rules.
I have already said that that is not true. The hon. Gentleman went on to say:
Hospitals decide who should be admitted, and when, in the light of the resources and facilities which they have available and the demands upon them.
That is not true. My understanding is that, although the four special hospitals can theoretically refuse to accept patients from the: courts, in practice they do not do so. I should like to say in passing that, if Park Lane could recently receive a prisoner, Michael Fagan, who has no conviction beyond pleading guilty to taking and driving away a motor car, one cannot say that special hospitals can turn people away.
The Under-Secretary of State continued:
Commission members will be expert in hospitals and their systems and practices … We cannot expect them to have the same expertise in the workings of every institution where a mentally disordered offender might go if he does not go to hospital."—[0fficicl Report, Special Standing Committee, 17 June 1982; c. 614.]
That sort of argument by the hon. Gentleman in Committee was pure casuistry. There is no basis for it at all. We are discussing not the institution but an individual who needs psychiatric treatment. Because of his teal need for that treatment the doctor in charge of him ought properly to have his decisions in certain circumstances reviewed by other doctors.
Immediately after the Committee stage, the noble Lord Elton received the all-party penal affairs group and contradicted the Under-Secretary of State 100 per cent. He said that he wanted to bring the prison medical service closer into line with the profession as a whole and not leave it as a separate institution, detached in some way from the medical profession generally. I have to admit that the Minister of State, Home Office, the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew), to whom I wish to pay tribute for his courtesy in discussing this matter, did not use what might be called the Finsberg argument in the letter he wrote to me. In a very sensible letter, he said that he saw the commission having three sorts of relationship with the prison medical service—first, in a general sense, to try to help the prison medical service in decanting those people who ought not to be in prison; secondly, in an individual sense, to help particular prisoners to find hospitals that are appropriate for them; thirdly, medical treatment, which goes to the nub of the amendment.
The hon. and learned Gentleman said:
Third, there is the question of the medical treatment given to the mentally disordered person who remains in prison because no hospital place car be found. This is of course a matter for the clinical judgment of the medical officer, but as you point out he will often seek a second opinion from an outside specialist. It may indeed be, as you suggest in your letter, that psychiatrists called in by prison medical officers will be members of the Commission. It is also possible that prison medical officers w ill find it helpful to seek advice from the Commission itself, as a body which will have acquired extensive experience in the treatment of detained mental patients generally. We should be quite happy for the Commission to take on this role.
I pay tribute to the Minister because the tone of his letter is completely different from the tone of the Under-Secretary of State's reply in Committee. Unfortunately, the hon. and learned Gentleman says in the final paragraph of his letter:


We do not think that such arrangements should be put on a statutory basis. While, therefore, we could not accept the amendment you have tabled for Report Stage, we do support its intent.
How often does one hear that argument from Ministers? They are all in favour of the idea but they do not like the actual words of the amendment—because, as I suggested in Committee, much though Ministers would like to accept the amendment, the Home Office has consistently over the years refused to have any supervision outside the Home Office, of what goes on in prisons. The Select Committee on Education, Science and Arts is carrying out an inquiry into prison education. I suspect that it will find that something of a road block when it comes to make a report.

Mr. Charles Irving: I agree with a great deal of what the hon. Gentleman has said. There are many hundreds of people in prisons who should not be there at all. They should be receiving hospital treatment. Am I correct in saying that at the moment a psychiatrist, a doctor or medic from the mental health service can go into a prison? Is not the hon. Gentleman telling the House that that is to be changed and that there will be nothing on paper? At the moment it is a national scandal that there are hundreds of patients in prison who should be in hospital. If what the hon. Gentleman says comes to pass, does not that mean that the chances of their moving from prison to hospital will be that much more remote than they are at the moment?

Mr. Price: I fully agree with what the hon. Gentleman has said. The three legs of the Minister of State's argument ought to hang together on a statutory basis. If he wants to empty the prisons of those people who ought not to be there, constant pressure and review by the Mental Health Act Commission would be far more likely to bring that about than denying the Mental Health Act Commission some sort of statutory right there.
My second reason for introducing the new clause is that there have been a number of incidents in prison which should cause the prison medical profession's supervision of patients suffering from psychiatric disorder brought under some form of review. The Prosser case is well known and it has been debated frequently in the House. Two recent deaths in London prisons—I could cite many more instances—were those of Terence Smerdon at Wandsworth and Paul Worrall at Brixton last year. Both individuals were in prison yet suffering from psychiatric disorders. This underlined the argument that, if the commission were given a list of individuals in prison who should be in hospital, if the parents were worried and could write to it and if it had a statutory right to supervise, the two deaths that took place last year might not have taken place and Terence Smerdon and Paul Worrall might be alive today.
I am no longer demanding a statutory right of entry into prisons for the commission, although I think that I would be justified in doing so. I know that the Home Office has set its face against that. The new clause merely provides in the second subsection:
In the event of any person to whom subsection (1) … applies being detained or continuing to be detained in a detention centre or a youth custody centre or a prison then any member of the Prison Medical Service may consult the Mental Health Act Commission".
I am merely saying that there should be a statutory right of consultation between the prison medical service and the

Mental Health Act Commission. I am no longer asking for anything that could be described as mandatory. I drafted the clause in as modest a form as possible in the belief and hope that I would get the support of the Minister of State, Home Office. That is why I was intensely disappointed when I read the last paragraph of his letter, in which he stated that in his opinion it would be inappropriate to proceed on any sort of statutory basis.
I want a statutory approach. I understand that the Minister may be exploring ways in which the Department of Health and Social Security and, I hope, the Home Office might issue instructions during the passage of the Bill both to the commission and to the prison medical service on how the two might work together and cooperate with each other to prevent the tragedy of the mentally ill committing suicide while in prison. According to the inquest, Terence Smerdon banged his head against the wall until he died. I hope that the approach that I have described will prevent such tragedies in future.
I have already discussed these matters with the Minister of State and I shall want compelling arguments from him that are directed to why we should not adopt a statutory approach and which explain why he feels that advice from the Home Office and the DHSS could adequately replace legislation before I shall feel able to advise the House not to press this issue to a vote.

Mr. Charles Irving: I listened with great interest to the remarks of the hon. Member for Lewisham, West (Mr. Price). I hope that I speak with a little experience of the scandalous penal conditions that exist in the United Kingdom. The Director General of the Prison Service, with his long experience, says that the present system in the United Kingdom is an affront to a civilised nation. We must surely take notice of such powerful comments from that source.
I urge my hon. and learned Friend the Minister of State, Home Office, on what is an important issue, to reconsider whether something can be done to meet what I would say is a reasonable request from the hon. Member for Lewisham, West.
Those of us who spend a great deal of time in the examination of mental health conditions and all the problems that appertain to them and those of us who care and spend time trying to ensure that something is done to protect not only the rights of patients but the rights of prisoners, nurses, staff and prison officers, have constantly been worried and angered by the fact that almost weekly one reads in the national press of the strongest protestations of senior judges when they are forced to send men and women to prison because of the impossibility of getting them into psychiatric hospitals.
I believe that beds are available for those who are suffering from mental disorders and who are now in prison. I believe that most of these people could be taken out of the prison system if the will were there to do so. I listened intently to the hon. Member for Lewisham, West and it appeared that something might happen that my hon. and learned Friend would not want to happen. It might become even more difficult for those who really care that men and women are in prison who should never be there to receive advice and to obtain proper medical reports before making representations to the Home Office so that transfers may take place. The Home Secretary, who will be much involved in a debate that is to take place later this


week, the prison service and all those who are concerned are worried to death about the mounting possibility of a major rebellion in our prisons and institutions.
We still have the asinine philosophy of sending fine defaulters to prison. Only last year we imprisoned 21,000 of them. Perhaps much will be changed following the passage of the Bill that is to come before the House later this week. The Bill that is before us has made possibly the greatest advances in mental health conditions since the 1959 Act. It seems to take about 20 years to update our outmoded practices for psychiatric hospitals and prisons. Surely we should not lose this major opportunity of correcting conditions that have existed for so long.
I have always understood that doctors and professional people in the National Health Service have reasonably easy access to the prisons. The hon. Member for Lewisham, West spoke feelingly on that matter. What disturbs me is that I would be worried and distressed if there was any danger of not moving people from a prison system that they did not deserve into a hospital or psychiatric home. That would not be right. I hope that the Minister will agree that it is not his intention that that should be so. I hope that there will be some modicum of support for the hon. Gentleman's proposal.

Mr. Terry Davis: I hope that the Minister of State, Home Office, will accept the new clause that has been tabled by my hon. Friend the Member for Lewisham, West (Mr. Price). It is an extremely important new clause and extends the opportunities for treatment and advice that can be given about treatment for prisoners who are suffering from a mental disorder. My hon. Friend said that special hospitals cannot refuse to admit someone from a prison. That is not correct. I described the case of Paul in Wakefield in detail in Committee and referred to the activities of my right hon. Friend the Member for Wakefield (Mr. Harrison) who did a great deal to obtain admission for Paul to a suitable institution. One of the places that refused to admit Paul was a special hospital. It is open to either the medical director of a special hospital or to the DHSS to refuse admission to special hospitals. In that case it was the DHSS that refused to admit that young man to a special hospital.

Mr. Christopher Price: It is right to say that on many occasions prisoners whom the prison authorities feel should be in special hospitals are not accepted. My point was that it is rare for a prisoner who is convicted of a dangerous crime to be refused admission to a special hospital at the point of conviction.

Mr. Davis: That may be correct. In the case to which I referred the offence was minor. It was felt that a special hospital was not appropriate for the offender. At the same time the medical director of an ordinary hospital refused admission because he felt that the offender needed to be treated in a more secure hospital. I wanted to make the point that people are not admitted automatically to special hospitals if they have committed offences.
We hope that new clause 3, which has been added to the Bill, will reduce the number of people who are sent to prison instead of hospital. However, listening to the debate and having reflected on our debates in Committee, I am concerned that we tend to assume that if someone needs medical treatment he should go to hospital and not be imprisoned. I wonder whether that is correct. In our enthusiasm to ensure that people who should be in hospital

are sent to hospital rather than prison we tend to assume that everyone who needs medical treatment for a mental disorder should be in hospital and not in prison. That may not be correct. Some people may need medical treatment for a mental disorder but may not need to be admitted to hospital. We were concerned in Committee to ensure that people who did not need to go to hospital were not admitted forcibly and detained against their will. Some of that category of people may be in prison. It is equally inappropriate for them to be sent to hospital and be detained there.
I raised that point because I wondered whether we should leap to the conclusion that everyone who needs medical treatment should be in hospital and not in prison. There will continue to be people in prison who need medical treatment for a mental disorder. That, at least, is common ground. My hon. Friend's new clause seeks to make it more likely that there will be consultation and liaison between the Mental. Health Act Commission and the prison medical officers about the treatment of prisoners who need medical treatment for a mental disorder.
My hon. Friend referred to a letter that he received from the Minister of State. I agree with my hon. Friend that it is not enough to draw the attention of prison medical officers to the existence of the Mental Health Act Commission and the advice that it can offer to them. I am disturbed by some information that was given to the House as a result of a parliamentary question tabled by my hon. Friend the Member for Lewisham, West. The question was answered on 5 July. It was clear from the answer that more than half of prison medical officers had no psychiatric qualifications. The Minister took some pleasure in announcing that 45 per cent. of prison medical officers had psychiatric qualifications. That means that 55 per cent. do not. That matter should concern the House. It is not enough to draw the attention of prison medical officers to the existence of the Mental Health Act Commission without encouraging them to keep in close touch with, and seek advice from, the Mental Health Act Commission.
I have also tabled an amendment to my hon. Friend's new clause. Amendment(b)would make it possible for prisoners to receive treatment from doctors who treated them before they were sent to prison. I tabled the amendment as the result of some correspondence, whitch I have seen between my right hon. and learned Friend the Member for Warley, West (Mr. Archer) and the Home Office. Therefore, my concern is based on a real case. The prisoner had been receiving psychiatric treatment before he was sent to prison. He was transferred between prisons, and was in three prisons altogether. Originally he was in Lincoln prison and then he was transferred to Shrewsbury. The psychiatrist who was treating him before he was sent to prison was willing and, indeed, anxious to continue the treatment that his patient had received before being committed to priscn. The psychiatrist contacted the prison authorities in an attempt to continue the treatment. He encountered substantial resistance from the prison authorities. He was told at Shrewsbury that the prison hospital assumed all medical responsibilities and that unless the purpose of his visit was in connection with an appeal he would not be able to visit his patient.
The prisoner was then transferred to Leyhill prison. The psychiatrist was told that he could visit his patient only in pursuance of a visiting order "in the normal manner". He was asking only for the courtesy of being enabled to see


his patient in prison. He hoped to continue the treatment. The patient was anxious to receive treatment from his doctor but was prevented from doing so.
When my right hon. and learned Friend complained to the Home Office, he was told that the prison medical officer had statutory responsibilities for the physical and mental health of every prisoner in the establishment and that it would be considered unethical for the psychiatrist to visit the prisoner. He could visit the prisoner as an ordinary visitor but must not enter into a clinical relationship with the prisoner.
My amendment seeks to provide that, if a psychiatrist is willing to continue to treat a patient who has been confined in prison and if the prisoner is willing to receive the treatment, it would be possible for that to happen. I cannot understand why the Home Office should seek to prevent the continuation of treatment that has already been received by a patient suffering from a mental disorder. Therefore, I hope that my hon. Friend the Member for Lewisham, West will accept my amendment. I hope that the Minister will accept both the new clause and the amendment.

Mr. Michael Spicer: Whatever happens to the new clause, I hope that the extremely important fundamental issue raised by the hon. Member for Lewisham, West (Mr. Price) and my hon. Friend the Member for Cheltenham (Mr. Irving) will be looked at again by the Home Office and the Department of Health and Social Security.
7 pm
We have known about the problem of mentally ill prisoners for a long time. About six years ago I had an Adjournment debate on the subject. I take the point made by the hon. Member for Birmingham, Stechford (Mr. Davis) that not every such prisoner needs to go to hospital, but it is a real problem. The last time that I looked at the matter there were about 1,000 of these individuals in prison who were clearly wrongly placed. A gamut of suggestions has been made to Governments of various complexions but little seems to happen. The situation gets worse and worse. Today, access to more independent medical advice has been suggested, and there is the proposal for regional secure units. Whatever happens to the new clause I hope that the Government will look again at this extremely important social problem.

The Minister of State, Home Office (Mr. Patrick Mayhew): I am grateful to the hon. Member for Lewisham, West (Mr. Price) for what he said at the beginning of his speech about our consultation and correspondence.
My hon. Friend the Member for Worcestershire, South (Mr. Spicer) stated that it has long caused great anxiety that any, let alone so many, people are held in prison who are mentally disordered and who should be in mental hospitals. That view has been reflected by everyone who has spoken in this debate. Although the number remains a cause of deep anxiety, in recent years it has decreased as more prisoners are transferred to hospitals. In the mid-1970s just over 50 prisoners a year were transferred. In 1980 it was nearly 100, and the number is increasing. That is a small measure of reassurance. At 31 March 1982 there

were 287 mentally disordered inmates so identified. In June 1977 the number was 769. But I do not draw attention to the trend at all complacently.
I understand the intentions of the hon. Member for Lewisham, West. His views about the desirability of bringing the prison medical service under the National Health Service are well known but I do not share them. Nor do I accept his view, which is shared by the hon. Member for Birmingham, Stechford (Mr. Davis), that the tragic instances could have been prevented had the prison medical services been organised differently. However, in certain circumstances it might be useful for those responsible for the care of the mentally disordered prisoner to have recourse to the Mental Health Act Commission for advice and support.
The hon. Member for Lewisham, West was kind enough to refer to the letter that I wrote to him in July. I said that we would be ready to encourage the development of a non-statutory arrangement to that effect.
The debate should be within a narrow compass—whether there should be statutory incorporation of the principle that prison medical officers may consult the commission. Let me explain the arrangement whereby there could be consultation. If the commission felt able to take a general interest in the difficulties that are too often experienced in finding hospital places for offenders, the Home Office would co-operate and would welcome any suggestions that it offered. Its annual reports would be a highly influential vehicle to that end.

Mr. Christopher Price: Does the Minister's reference to annual reports mean that the Government are changing their mind about having them only every two years, and accepting the Opposition's suggestion?

Mr. Mayhew: I should not think so for a minute. But the commission's reports would be an obvious way to bring pressure to bear. If it had suggestions, I would not want it to wait for even a year to go by. The suggestion should be put forward as soon as it is formulated.
In individual cases where it proves difficult to obtain a hospital admission for a mentally disordered offender the commission's involvement will necessarily be limited. As was explained in Committee, it cannot provide the desired solution—a hospital bed. It cannot wave a wand or impose an obligation on the DHSS or an individual hospital to provide a bed. But members of the commission may be able to provide useful advice to a prison medical officer experiencing such a problem, and we would encourage medical officers to seek such advice if it were available. As I said in my letter, the commission will in any event be building up a body of knowledge about the treatment of mentally disordered patients. We hope that prison medical officers will feel able to approach it on any matter on which that knowledge and experience would be helpful generally, or in particular cases. We wish actively to encourage such practice.
It must necessarily be less than a hard and fast statutory arrangement for two reasons. First, the medical treatment given to a prisoner is for the professional judgment of the medical officer, who has complete clinical freedom, which includes the discretion to refer a patient to a specialist. Many mentally disordered prisoners are referred to an NHS consultant psychiatrist. Medical officers may well wish to seek a second opinion on a mentally disordered prisoner. Incidentally, I do not


suppose that any medical officer wishes to have in his prison any person whom he has identified as mentally disordered. He may well wish to seek a second opinion from an outside psychiatrist who is a member of the commission. But we must retain the freedom for him to go elsewhere for advice.
Secondly, we can only speak tentatively about what the commission will or will not do. As it gains experience it will be for the commission to decide what it can offer.

Mr. Christopher Price: Why is it proper to limit the clinical freedom of a consultant psychatrist at Broadmoor by allowing the commission at short notice to interview the patient alone and look at the records yet not the clinical freedom of a prison medical officer who may not be nearly so eminent as some of the consultants at special and other hospitals?

Mr. Mayhew: While there are similarities between the position of the prison medical officer vis-a-vis his patient, and that of the responsible medical officer at a special hospital, their positions are not absolutely on all fours. As the hon. Gentleman knows, prison rules specifically state that the prison medical officer is responsible for the care of the mental and physical health of all inmates in his prison. The inmates are sent to prison for reasons quite unconnected with their health, and the prison medical officer cannot pick and choose those whom he wishes to treat. Although some of that applies to the special hospital doctors, it does not to the same degree. Patients are in special hospitals so that they can receive the care of a doctor. In extreme cases, if they cannot benefit from treatment, the doctor may suggest a transfer or a discharge. I recognise the force of the hon. Gentleman's argument, but I hope that he will accept that the cases are not on all fours.
There are two reasons why I cannot advise the House to accept the new clause. First, as was explained in several different contexts in Committee, we are against the unnecessary weighing down of this or any other legislation with declarations of good practice, which in the end add nothing to the position which already obtains. That is what the new clause does. It is a purely permissive power. It does not seek to impose a duty on the prison medical officer to consult the commission, or on the commission to respond, and therefore it is of no practical effect. A prison medical officer is already entirely free to call into consultation anyone he wishes. The difficulty is that, because the power to consult is not set out in statute, that suggests that it is not available.
Secondly, in seeking to place the proposal on a statutory basis, the new clause inevitably draws the net too tightly, and thereby sacrifices the advantages of flexibility which a non-statutory arrangement would confer. It would surely be better for all concerned if the commission could be consulted not only about the categories of prisoner specified in the clause, but about any prisoner whom the prison medical officer feared would shortly fall into one of those categories. In that way, the commission's involvement would stand a much better chance of conferring some tangible benefit on the prisoner. It would be a pity to confine the commission to the residual role of advising on the medical treatment of such a prisoner only after it had proved impossible to have him admitted to hospital.
It would not be possible to modify the new clause to overcome those difficulties and make it acceptable. One

cannot draw up a statutory definition of the categories of prisoner to whom the new clause is to apply based on what the prison medical officer thinks might happen in the future in their cases. Nor, in any event, would it be wise to impose any statutory duty on the prison medical officer to consult the commission.
I have tried to explain the various ways in which the Government would be prepared to help and encourage the involvement of the commission on a non-statutory basis. When the commission begins work it must decide what it can contribute in that area. We shall do all possible to encourage the development of links between the prison medical service and the commission. I wish to assure my hon. Friend the Member for Cheltenham (Mr. Irving) that the provisions in the Bill will in no way diminish the ability of anybody to visit a prison and discover what is happening in the case of an individual prisoner I know that he has long been concerned in such matters.
Amendment(b), tabled by the hon. Member for Birmingham, Stechford (Mr. Davis), would give those in a prison department establishment, because efforts to arrange a transfer to a psychiatric hospital had failed, the right to be treated by a doctor of their choice. I recognise the force of his illustration of a psychiatrist who wished to follow up the progress of a patient whom he had previously treated.. I understand his wish to give mentally disordered people whom we all agree should not be in a penal establishment a free choice of doctor. However, his amendment would have unfortunate consequences.
Prison medical officers are unique in having a statutory responsibility, to which I have referred. That reflects the fact that, just as prisoners cannot have a choice of doctor, a prison medical officer cannot choose whether he accepts a certain prisoner as his patient. If a prisoner decided to see another doctor who prescribed a course of treatment, the prison medical officer could find himself in an impossible position. He would be responsible for the care of the prisoner's health, even though he might disagree with the treatment. I cannot see a way around that difficulty.
It is not true that prisoners are treated only by doctors who work for the prison medical service. I have more than once referred to the discretion of prison medical officers who refer their patients to outside specialists. Last year psychiatrists from outside the prison medical service had more than 10,000 consultations with inmates, at the request of the responsible prison medical officer. Any inmate to whom the amendment applied would necessarily have seen an outside psychiatrist when the transfer reports required by the legislation were prepared. In many cases the patient would continue to see the specialist. The decision whether another opinion should be sought must, however, be left to the discretion of the prison medical officer, otherwise he cannot continue to exercise his responsibilities properly. The result could be only that the health care of prisoners would suffer.
As prison medical officers can already seek a second opinion, other than on clinical grounds, there is perhaps an assurance that those responsible for the amendment have not as yet observed.

Mr. Terry Davis: I understand the force of the Minister's remarks—that the prison medical officer should decide whether a second opinion is required. However, does he not think that it is desirable that a psychiatrist who


has been treating a patient should continue to do so when the patient becomes a prisoner if he so wishes? It is not desirable for a psychiatrist to be brushed off, as happened in the example that I quoted.

Mr. Mayhew: In general, and as a layman only, I can envisage circumstances in which that might be desirable. It is, therefore, relevant that prison medical officers have already been specifically advised to consider referring patients to another doctor—even if that is not clinically necessary—if they believe that that might benefit the patient by reducing undue anxiety.
I apologise for having spoken at length, but I have had to deal with a number of difficult questions and quite proper interruptions. The present arrangements are the most satisfactory approach to the medical treatment of mentally disordered prisoners. The new clause would be detrimental to a prisoner's interests. I hope that the hon. Member for Lewisham, West (Mr. Price) will withdraw the new clause.

Mr. Christopher Price: The response from the Minister has been considerably better than that which we received in Committee. I take at face value his desire to promote a better relationship. Some of his arguments were a little harsh, and he described my new clause as permissive. I would have loved to make it stronger, but his hon. and learned Friend the Minister for Health advised the Committee that such an amendment could not be accepted. Nor do I believe his arguments about prisons to be right. He said that a prisoneer could not have a choice of doctor. That applies also to the detained psychiatric patient. He cannot say that he does not like a particular doctor. He must be treated by the doctor allocated to him in exactly the same way as a prisoner.
The special responsibility laid down in prison rules for the prison medical officer is in no way different from the special responsibility of a responsible medical officer in a psychiatric hospital. I am not convinced by the Minister's arguments. I wish that I could accept the amendment to my new clause in the way in which I would be allowed to accept an amendment in my local general management committee. However, according to the rules of the House, until the principle of the new clause is accepted, the House cannot condider any amendments to it.
In order to get an expression from the House about the real problem highlighted by my hon. Friend, I advise him to press the new clause.

Question put, That the clause be read a Second time:—
The House divided:Ayes 107, Noes 154.

Division No. 302]
[7.20 pm 


AYES


Archer, Rt Hon Peter
Dalyell, Tam


Atkinson, N.(H'gey,)
Davidson, Arthur


Bagier, Gordon A.T.
Davis, Terry(B'ham, Stechf'd)


Beith, A. J.
Dean, Joseph(Leeds West)


Bennett, Andrew(St'kp't N)
Dixon, Donald


Booth, Rt Hon Albert
Dobson, Frank


Bray, Dr Jeremy
Dormand, Jack


Canavan, Dennis
Douglas, Dick


Cocks, Rt Hon M.(B'stol S)
Duffy, A. E. P.


Cowans, Harry
Dunnett, Jack


Craigen, J. M.(G'gow, M'hill)
Dunwoody, Hon Mrs G.


Crowther, Stan
Eadie, Alex


Cryer, Bob
Eastham, Ken


Cunningham, Dr J.(W'h'n)
Ellis, R.(NE D'bysh're)





English, Michael
Owen, Rt Hon Dr David


Ennals, Rt Hon David
Palmer, Arthur


Evans, loan(Aberdare)
Pavitt, Laurie


Evans, John(Newton)
Pitt, William Henry


Ewing, Harry
Powell, Raymond(Ogmore)


Flannery, Martin
Price, C.(Lewisham W)


Ford, Ben
Robertson, George


Forrester, John
Ross, Ernest(Dundee West)


Foster, Derek
Sever, John


Foulkes, George
Silkin, Rt Hon S. C.(Dulwich)


Freeson, Rt Hon Reginald
Skinner, Dennis


Grimond, Rt Hon J.
Soley, Clive


Hamilton, James(Bothwell)
Spearing, Nigel


Hamilton, W. W.(C'tral Fife)
Spriggs, Leslie


Hardy, Peter
Stoddart, David


Harrison, Rt Hon Walter
Stott, Roger


Haynes, Frank
Thomas, Dafydd(Merioneth)


Homewood, William
Thomas, Mike(Newcastle E)


Hooley, Frank
Thomas, Dr R.(Carmarthen)


Howells, Geraint
Thorne, Stan(Preston South)


Hoyle, Douglas
Tinn, James


Hughes, Robert(Aberdeen N)
Torney, Tom


Jones, Barry(East Flint)
Varley, Rt Hon Eric G.


Kerr, Russell
Wainwright, R.(Colne V)


Lamond, James
Wainwright, E.(Dearne V)


Leighton, Ronald
Watkins, David


Lewis, Ron(Carlisle)
Weetch, Ken


Litherland, Robert
Welsh, Michael


Lofthouse, Geoffrey
White, Frank R.


McDonald, Dr Oonagh
Whitehead, Phillip


McNally, Thomas
Whitlock, William


McNamara, Kevin
Wigley, Dafydd


McWilliam, John
Wilson, William(C'try SE)


Marshall, D(G'gow S'ton)
Winnick, David


Marshall, Dr Edmund(Goole)
Woolmer, Kenneth


Marshall, Jim(Leicester S)
Wright, Sheila


Mason, Rt Hon Roy
Young, David(Bolton E)


Maynard, Miss Joan



Meacher, Michael
Tellers for the Ayes:


Milian, Rt Hon Bruce
Mr. Allen McKay and


Morris, Rt Hon A.(W'shawe)
Mr. George Morton.


Morris, Rt Hon C.(O'shaw)





NOES


Alexander, Richard
Fairgrieve, Sir Russell


Alison, Rt Hon Michael
Faith, Mrs Sheila


Ancram, Michael
Fell, Sir Anthony


Aspinwall, Jack
Fookes, Miss Janet


Atkinson, David(B'm'th,E)
Forman, Nigel


Baker, Nicholas(N Dorset)
Fowler, Rt Hon Norman


Bendall, Vivian
Fry, Peter


Benyon, Thomas(A'don)
Gardiner, George(Reigate)


Berry, Hon Anthony
Garel-Jones, Tristan


Best, Keith
Goodhart, Sir Philip


Biggs-Davison, Sir John
Goodhew, Sir Victor


Blackburn, John
Goodlad, Alastair


Boscawen, Hon Robert
Gow, Ian


Bottomley, Peter(W'wich W)
Grant, Anthony(Harrow C)


Bright, Graham
Greenway, Harry


Brinton, Tim
Grieve, Percy


Brotherton, Michael
Griffiths, Peter Portsm'th N)


Brown, Michael(Brigg &amp; Sc'n)
Grist, Ian


Buck, Antony
Grylls, Michael


Budgen, Nick
Hamilton, Michael(Salisbury)


Burden, Sir Frederick
Hannam, John


Carlisle, John(Luton West)
Haselhurst, Alan


Chalker, Mrs. Lynda
Heddle, John


Chapman, Sydney
Henderson, Barry


Clark, Hon A.(Plym'th, S'n)
Hill, James


Clarke, Kenneth(Rushcliffe)
Hogg, Hon Douglas(Gr'th'm)


Cockeram, Eric
Holland, Philip(Carlton)


Colvin, Michael
Hooson, Tom


Cope, John
Howell, Ralph(N Norfolk)


Cormack, Patrick
Irvine, RtHon Bryant Godman


Costain, Sir Albert
Jopling, Rt Hon Michael


Cranborne, Viscount
Kaberry, Sir Donald


Crouch, David
Kershaw, Sir Anthony


Dickens, Geoffrey
Kitson, Sir Timothy


Dover, Denshore
Lang, Ian


Dunn, Robert(Dartford)
Lawrence, Ivan






Lennox-Boyd, Hon Mark
Rippon, Rt Hon Geoffrey


Lester, Jim(Beeston)
Roberts, M.(Cardiff NW)


Lloyd, Peter(Fareham)
Rossi, Hugh


Loveridge, John
Rumbold, Mrs A. C. R.


Luce, Richard
Sainsbury, Hon Timothy


Lyell, Nicholas
St. John-Stevas, Rt Hon N.


McCrindle, Robert
Shaw, Giles(Pudsey)


Macfarlane, Neil
Shaw, Sir Michael(Scarb')


MacKay, John(Argyll)
Shepherd, Colin(Hereford)


Macmillan, Rt Hon M.
Sims, Roger


McNair-Wilson, M.(N'bury)
Skeet, T. H. H.


McNair-Wilson, P.(New F'st)
Smith, Tim(Beaconsfield)


Madel, David
Speed, Keith


Major, John
Speller, Tony


Marlow, Antony
Spicer, Jim(West Dorset)


Mather, Carol
Spicer, Michael(S Worcs)


Maude, Rt Hon Sir Angus
Squire, Robin


Mawby, Ray
Stanbrook, Ivor


Mawhinney, Dr Brian
Steen, Anthony


Maxwell-Hyslop, Robin
Stevens, Martin


Mayhew, Patrick
Stradling Thomas, J.


Mellor, David
Taylor, Teddy(S'end E)


Meyer, Sir Anthony
Temple-Morris, Peter


Mills, lain(Meriden)
Thomas, Rt Hon Peter


Moate, Roger
Thompson, Donald


Morrison, Hon C.(Devizes)
Thornton, Malcolm


Murphy, Christopher
Townend, John(Bridlington)


Neale, Gerrard
Trippier, David


Needham, Richard
van Straubenzee, Sir W.


Neubert, Michael
Viggers, Peter


Newton, Tony
Waddington, David


Osborn, John
Waller, Gary


Page, John(Harrow, West)
Ward, John


Page, Richard(SW Herts)
Watson, John


Parris, Matthew
Wells, Bowen


Pattie, Geoffrey
Wells, John(Maidstone)


Pollock, Alexander
Wheeler, John


Price, Sir David(Eastleigh)
Wickenden, Keith


Proctor, K. Harvey
Wolfson, Mark


Raison. Rt Hon Timothy



Rathbone, Tim
Tellers for the Noes:


Renton, Tim
Mr. Archie Hamilton and


Ridsdale, Sir Julian
Mr. David Hunt.

Question accordingly negatived.

New Clause 7

EXTENSION OF SECTIONS 41, 43 AND 44 TO VOLUNTARY PATIENTS

'Sections 41, 43 and 44 of this Act shall apply to any patient who is not liable to be detained under the principal Act or this Act.'.—[ Mr. Terry Davis.]
Brought up, and read the First time.

Mr. Terry Davis: I beg to move, That the clause be read a Second time.
New clause 7 is principally concerned with the effect of clause 41. As the Minister said, this part of the Bill about consent to treatment was completely revised in the Special Standing Committee. Although we have some reservations about parts of those provisions, we are not seeking to oppose them. In particular, we have reservations about the three months grace that is given to a psychiatrist enabling him to administer medicine during that period without the consent of a patient able to give that consent and without a second opinion. We do not like that provision, but our amendments have not been selected. Therefore, we shall not be able to debate that point.
In Committee, we were concerned with the arrangements for consent to treatment of detained patients. Indeed, all our considerations about this part of the Bill were concerned with detained patients. At several points the Committee extended the provisions of the Bill to cover 

voluntary mental patients as well as detained patients. I am thinking particularly of the responsibilities of the Mental Health Act Commission, but there were several other points. For example, we were concerned with the rights and protection of voluntary mental patients. However, the part of the Bill concerning consent to treatment is concerned only with detained patients.
Clause 41 is perhaps the most important as regards consent to treatment, because it provides for both consent and a second opinion for certain treatments. Specifically, it will be necessa-y to have a detained patient's consent and a second opinion from another doctor for psychosurgery and other treatments which will be specified by the Secretary of State. Those treatments were described by the Under-Secretary of State for Health and Social Security as the most serious treatments. That is a fair description.
Clause 41 makes it necessary for six people to be involved in the decision about such treatment being given. Indeed, there will be seven people if we include the patient. First, there would be the psychiatrist and the patient. The patient would have to consent to the psychiatrist's proposed treatment. If the patient were not able to consent, it would riot go any further. In such instances, it is essential that a patient consent to a treatment proposed by the psychiatrist.
However, the matter is not left there. Those treatments are regarded as being so serious that the clause provides for another three people to be involved. Only one of those three people can be a doctor. Their function is to confirm that consent has been given. That confirmation would include a certificate that the patient is capable of understanding the nature, purpose and likely effects of the treatment. The second doctor, who is one of that trio, must certify that the treatment should be given having regard to the likelihood of it alleviating or preventing a deterioration of a patient's condition. Therefore, we have the patient and his psychiatrist and three other people who will have to certify that conse at is meaningful in that it is based upon the patient's proper understanding of what will happen.
The doctor amongst those three people would then, under amendment No. 27 which has been tabled by the Government, consult two other people who have been
professionally concerned with the patient's medical treatment. That amendment, to which we shall come later, resulted from a similar amendment which I tabled in Committee. Indeed.. I think it was identically worded. It means that the second doctor would talk to other people who have been professionally concerned with the patient in order to ensure tiat the treatment should be given.
There is a high level of protection. The patient must consent to the treatment proposed by the psychiatrist. Three other people must decide and confirm that the patient has given meaningful consent and understands what will happen, and two other people must be consulted to ensure that the treatment is appropriate and necessary and in the patient's interest. That adds up to seven people., including the patient: and the original psychiatrist.
That high level of protection is justified because we are talking about the most serious treatments, which will include psychosurgery as specified in one of the amendments tabled by the Government tonight, again in response to a request in Committee. Those treatments will include not only psychosurgery, but other treatments which will be specified by the Secretary of State who will


act on the advice of the Mental Health Act Commission. Therefore, a high level of protection will be provided for psychosurgery and other treatments.
This part of the Bill is concerned only with detained patients. That is mainly because in Committee we were concerned with the need to protect detained patients, especially those who do not consent to some treatment which the psychiatrist wishes to impose. It was felt—and I think that it is widely accepted—that a voluntary patient can look after his own interests. It was thought that a voluntary patient would simply refuse to give consent and, as nothing could be done without consent, the voluntary patient did not need any protection.
That position appertains to treatments covered by clause 42—the serious but less serious treatments where it is necessary to have the patient's consent, or a second opinion if consent is not forthcoming, for treatment to be given to a detained patient. In that context we are happy that a voluntary patient can refuse to give consent, so that a psychiatrist could not impose the treatment.
We are still left with a voluntary patient for whom the psychiatrist proposes one of the most serious treatments. As the Bill stands, that treatment would be given if the voluntary patient consented. There would not be the additional protection that would be given to detained patients to ensure that the consent is meaningful and that the treatment should be given in the best interests of the patient in the opinion of a second doctor after consulting two other people who have been professionally concerned with the patient's treatment.
It was unanimously agreed that some treatments are so serious that, even if a detained patient gives consent, that is not enough. It was accepted by the psychiatrist who came to the Committee—and I believe that it is accepted unanimously in the country—that treatment cannot be given unless there are those other safeguards. Consent is not enough. If some treatments are so serious that consent is not enough for a detained patient, should consent be enough for those most serious treatments to be given to a voluntary patient? I question whether the consent given to the psychiatrist alone, with no confirmation of that consent from anyone else, is adequate. I also question whether there should not also be confirmation from another doctor, after consultation with two other people, that treatment should be given and is in the patient's interest. That is the purpose of the new clause. It will extend the protection of clause 41 to voluntary patients in relation to the most serious treatments.
I understand that there may be a drafting inexactitude in the new clause as tabled. I have referred not only to clause 41, but to clauses 43 and 44, which concern how the various aspects of the procedure are followed by those responsible. However, I did not refer to clause 45, because clause 44 refers to it and I thought that that was adequate to ensure that the whole package existed for the protection of voluntary patients. I have now been advised that that is incorrect. Indeed, I am grateful to the Minister for consulting me and for giving me the benefit of his advice. Therefore, my hon. Friend the Member for Penistone (Mr. McKay) will formally move a manuscript amendment which, I understand, is acceptable to the Chair. He will move that the words "and 45" should be added at the appropriate place in the new clause. It is a technical point which will ensure that the Bill is correct.

Mr. Deputy Speaker (Mr. Paul Dean): I can confirm that Mr. Speaker has indicated that he is prepared to select an amendment on those lines.

Mr. Davis: I am grateful to Mr. Speaker for being willing to accept a manuscript amendment on that detailed point, because it will allow the Government to accept the new clause. The new clause should be welcomed by hon. Members on both sides because it extends the protection given by clause 41 to voluntary as well as detained patients.
The kernel of the argument is that if consent is not enough for a detained patient to be given these treatments, consent by a voluntary patient alone should not be enough for him to be given those treatments.

Mr. Kenneth Clarke: I accept what has just been described by the hon. Member for Birmingham, Stechford (Mr. Davis) as the kernal of the argument. The manuscript amendment is essential if the new clause is to have the effect that he intends. However, I must make it clear that in some ways we are taking a fairly drastic step. As the hon. Gentleman said, throughout the Committee's discussions on part VI, which is most important and which concerns consent for treatment, this part of the measure applied only to detained patients. The whole basis of the argument was that patients subject to detention who had lost their civil liberties needed some additional protection, but that because they were detained there were circumstances in which they should be given treatment without their consent, because the treatment might enable them to regain their liberty despite the fact that they lacked the insight to appreciate that when admitted to the hospital. Most of the provisions in part VI were designed to enable some treatment to be given without the patient's consent but subject to important safeguards.
The Committee worked on those safeguards and by and large we are happy that we have got them right. If it had been suggested at this late stage that we should extend all the provisions of part VI to non-detained patients, the Government would have resisted that strongly. Suddenly, a closely defined statutory regulation concerning courses of treatment in mental hospitals would extend to the generality of psychiatric patients and change the nature of the legislation. However, I agree with the hon. Member for Stechford that clause 41 is a special case. It is designed to apply to the most serious treatments, including psychosurgery. It will also apply to the most serious treatments that are irreversible or drastic, such as certain hormone treatments.
In the case of clause 41, medical witnesses gave their general approval to the proposition that such treatments could not be given without the consent of the patient. Not only should the patient give his whole hearted consent, but an independent second opinion should be required confirming it. That second opinion will be hedged about with such things as a duty to consult. The medical practitioner will be accompanied by two other persons and will have to consult those responsible for the patient's treatment. Indeed, the hon. Member for Stechford accurately described the careful safeguards involved.
I accept the argument that if a course of treatment is so drastic that a detained patient's consent alone should not justify it and that there should be further safeguards, it is difficult to see why the same provisions should not apply


to an informal patient. However, one could point out that a voluntary patient is free to leave. He can not only withhold his consent, but leave the hospital. Therefore, he is free to go and get whatever second opinion he thinks necessary. He is free to look to whatever other safeguards he thinks necessary. However, although that may apply to many voluntary patients, who have far greater insight into their condition than is usual among detained patients, I am sure that the House will accept that that does not apply to all voluntary patients.
In Committee we discussed the role of the Mental Health Act Commission in giving guidance on courses of treatment. The Committee was not disposed to confine that to detained patients and wished to have that advice and guidance extended across the generality of patients as far as treatment was concerned. The same arguments apply now. If it is thought necessary for a detained patient to have such safeguards in relation to the drastic and serious treatments involved in clause 41, the House will want to give the same safeguards to informal patients. Of course, some informal patients are fully capable of managing their affairs, have great insight into their condition and know that they need help. However, some informal voluntary patients are, in practice, near the borderline. Indeed, when evidence was given to the Committee frequent reference was made to informal voluntary patients who would almost certainly be sectioned if they showed any inclination to leave the hospital and to try to care for themselves in the outside world. There may be many patients in that category and they are entitled to the same protection as that given in clause 41 to detained patients.
On that basis, I accept the new clause. I am glad that the hon. Member for Penistone (Mr. McKay) intends to move a manuscript amendment, because it would be a drafting error to leave out the reference to section 45. This important new element in the Bill has emerged at a late stage in our proceedings. As a result, we have not had the wide consultations or the direct evidence that we have had on some of the other provisions. My impression of our debates in Committee is that the new clause very much matches the views expressed by hon Members and it is on all fours with the arguments that we heard. I think that the hon. Member for Stechford and I would agree that a large body of medical opinion would probably agree that, as long as it is clearly understood that the provision applies only to the most serious treatments, the principle is also admissible for voluntary patients. However, if there is a little consternation in the outside world about the lack of consultation and the short time left in which to deal with the matter, I trust that the official Opposition and the hon. Member for Stechford will take their fair share of the criticism—along with the Government and me—from those who complain about the lateness of the measure.
However, given that it has taken about 23 years to amend the law, it might be some time before such a step could be taken again if we let this opportunity pass. As we agree with it, it should be taken.

Mr. Ennals: The Labour Party appreciates the way in which the Minister has accepted the amendment, in the spirit of our debates about detained patients.
My clear impression is that a substantial number of patients in our mental hospitals do not actually know, and have not asked themselves, whether they are detained or voluntary patients. It is good that we are establishing this point in the amendment, and it will help to bring home to

patients that there are two categories. I agree with the Minister that a voluntary patient may become an involuntary patient according to the nature of his conduct and so on.
I greatly appreciate the Minister's willingness, even at this late stage, to accept the amendment. My hon. Friend the Member for Birmingham, Stechford (Mr. Davis) and all Labour Members will take our share of any criticisms.

Mr. Charles Irving: I am sorry, at this late hour, to have to bring in one or two notes of slight discord. First, however, I join the right hon. Member for Norwich, North (Mr. Ennals) in congratulating the Government and all those on the Committee who obviously went painstakingly into these vital issues which are of such importance to patients who suffer from the great problems about which we have heard so much over many years. It is significant, and therefore even more important, that we should get it as near right as possible, when one bears in mind that it has taken 23 years for a Conservative Government to come back with far-reaching and radical proposals that will be of immense benefit, help and protection to those who are suffering from mental health problems and who are detained in hospital. Nothing that I say is meant to denigrate the efforts of the Minister and his colleagues to be receptive to suggestions. I thank the Minister for the courtesy of his letter to me on a number of matters with which I shall not now have to weary the House.
The Bill is undoubtedly a great advance in providing much more protection for patients in psychiatric hospitals. Part VI of the Bill is a most important group of provisions. While there are many other matters of consequence to discuss, I cannot, as chairman of the all-party mental health group, allow this opportunity to pass by without making some comment upon it. There is no doubt that great efforts have been made in Committee to improve the complex provisions covering the difficult problem of consent to treatment. What has emerged is a sort of compromise between those who regard providing treatment for a patient as paramount and those who are concerned about the rights of detained patients. I do not feel that these positions are necessarily incompatible.
On Second Reading, as chairman of the all-party group, I said that we were concerned at the use of such treatment as ECT, especially in the high security hospitals. I am even more concerned because of the reports that I have received in the last few months on the use of potent drugs. This is not because I do not think that they should be prescribed. However, if they are given against the patient's wishes, perhaps because of fear of unpleasant side effects, the law must provide full and proper safeguards. Heavy drugging should not be used solely to silence the difficult.
There are many aspects of the consent provisions in the Bill that I applaud. The requirement for a patients consent, plus a multi-disciplinary confirmation of that patient's consent, to treatment that gives rise to special concern must be welcome. It should not be forgotten, however, that the number of psychosurgical operations, which is the treatment specifically named in this provision, on detained patients between 1979 and 1982 were minimal. As I understand it—I am sure the Minister will correct me if I am wrong—it is more or less policy not to carry out any more of these operations on detained patients. I am concerned with clause 42 dealing with those treatments requiring consent or a second opinion.
It is worth restating that part VI of the Bill, which deals with this matter, is the first time in English law that it has been specifically stated that a patient who is competent can still have treatment administered without his consent. The Mental Health Act 1959 never faced this issue and although section 26 is labelled "Admission for treatment" and treatment without consent is given as a matter of routine under it, there are two diametrically opposed legal views as to whether this is lawful.
I cannot imagine why a person who understands the nature and purpose of a treatment and refuses it should have treatment imposed upon him against his will. The Committee felt unable to accept this view, which makes it doubly important to re-examine the safeguards available for the objecting patient. The principal safeguard is a second medical opinion, to be appointed by the Mental Health Act Commission. I am pleased that he will be obliged to consult two members of the patient's caring team, neither of whom must be the doctor and one of whom must be a nurse. However, there is still professional self-regulation, which I fear may not gain the confidence of the public. Therefore, it is essential that the second medical opinion should be wholly independent of the hospital where the patient is being treated. I hope that this is the intention of the Government, and should welcome reassurance about this.
This subject became even more important to me after I read an article inThe Guardianon 9 September which reported moves by the East Berkshire health authority to discipline a senior nursing officer who was suspended by the Wexham Park hospital purely because he refused to order his nursing staff to hold down or sit on a patient to inject treatment she had refused, and was competent to refuse.
Mr. Walsh, the senior nursing officer concerned, was undoubtedly a thorn in the orthodox and cavalier set-up at Wexham, which has now closed the psychiatric unit, losing the use of 80 beds in this important type of medical treatment. However, Mr. Walsh had the full support of 50 of his own nurses. In a recent report commissioned by the Oxford regional health authority the East Berkshire authority admitted serious shortcomings at the hospital, which TheGuardianarticle outlined in full. The shortcomings are a disgraceful and shameful catalogue in medical history. The thanks that the senior nursing officer received for respecting his patient's wishes was to be sacked.
Mr. Walsh had nothing to gain and everything to lose. I and other members of the all-party group, have been, and are still, greatly concerned at the horrific power of the consultants and medics over the senior nursing staff who, because of their training and their ability to take on responsibility of a senior job of this kind, should at least have some say in the patient's welfare. Their knowledge of the patient's condition is often greater than that of the consultant or medic who may see the patient for a very few moments, as compared to the many hours that the nursing staff spend with the patient.
I cannot forget the outrageous case of the man who apparently, and, I expect, with considerable help, kicked himself to death. Yet at the end of the day the truth of Barry Prosser's fatal and vicious injuries have never been satisfactorily resolved.

8 pm
Furthermore, I cannot see why it is necessary for a patient who is objecting to the administration of a particular medicine to have to wait three months before he can demand a second opinion. In the Standing Committee, the Under-Secretary of State said that three months seemed to fit best with clinical experience and practice and that anything less would not allow the psychiatrist to assess the patient's condition and prescribe a long-term course of treatment.
I respect the Minister's views. Is it really necessary, however, to wait three months before a safeguard that is obviously deemed essential becomes operational? Now that treatment is specifically extended to those detained under section 25, they will have no effective opportunity to object to medicine that is given to them. Surely the core of this Bill is the recognition that patients who are to be treated against their will shall have truly effective safeguards. I can understand allowing one month's grace for those detained under section 26 but I am unable to see the reason for a longer period.
My fear about these provisions is that they are so complex that they come perilously close to the old legislation that was consigned to the dustbin in 1959. I wish to refer to a recent case that illustrates the shortcomings in the present position especially in relation to drugs. I do not wish to go into details but the patient objected to the proposed drug treatment. The only reason that she did not receive it was that the nursing staff, partly on the basis of their union's legal advice on imposing treatment under the 1959 Act, refused to administer it. The patient was subsequently discharged by a tribunal which seems to suggest that her objection to treatment had some validity. What will be the position of this lady under the new Bill? So far as I can see, there will be no way that she could object to any drug treatment until three months have passed. I find that unacceptable.

Mr. Peter Bottomley: The Brook hospital in my constituency has a neurosurgical unit. The whole issue of psychosurgery at the hospital has come up twice during my time as an hon. Member. I have been impressed by the manner in which the doctors have opened up the unit to interested observers, those critical of procedures and those, like myself, who are waiting to be convinced that safeguards were already in effect. I support the amendment and the welcome given to it by the Minister.
Although there has not been much time for consultation on extending the provision, it will be generally welcomed. Those involved have little to fear by making sure that there is informed consent by the patients themselves or those about them. I believe that the hospital would not want this opportunity to pass without my thanking the Minister for his intervention over the cardiac unit at the hospital and passing on our thanks.

Mr. Kenneth Clarke: I am grateful to my hon. Friend the Member for Woolwich, West (Mr. Bottomley) for his remarks. I rise, however, not to reply to my hon. Friend or to the hon. Member for Birmingham, Stechford (Mr. Davis) with whom Ministers are in broad agreement, but to reply to some of the points made by my hon. Friend the Member for Cheltenham (Mr. Irving). I would have expected a fairly major contribution to be made by the chairman of the all-party mental health committee. Indeed, my hon. Friend has made a fairly weighty


contribution covering the whole of part VI on consent to treatment. I accept the strictures, because my hon. Friend is not opposing the policy of the Bill. He has been kind enough to say that he regards the Bill as now drafted as a substantial improvement on the 1959 Act and the existing situation. I believe that is correct.
My hon. Friend wonders whether we have gone far enough and whether the safeguards as they now stand are sufficient. My hon. Friend's starting point is that the existing law allows patients to be admitted to hospital under the 1959 Act, and detained. It is widely assumed or argued that because, under section 26, they are admitted for treatment, this entitles the medical staff to give treatment without the patient's consent where this is in the patient's own interest. That has always been a somewhat arguable proposition. It has given rise to difficulties. Indeed, that uncertainty about the law probably lies at the root of some of the recent scandals, or controversies, to which my hon. Friend referred.
The point of part VI is to remove all those doubts for doctors, nurses, patients and for patients' relatives and friends about what is lawful and what is not lawful. I believe that part VI as a whole provides clear codification of the law. It makes clear what can be done without consent and what cannot be done except with consent. We have produced a code with the facility to make regulations and to provide that the continued role of the Mental Health Act Commission can be updated and revised to match good practice and its continuing evolution in this difficult field.
My hon. Friend the Member for Cheltenham is among those who are more than half inclined to argue that no patient should be given any treatment unless he has consented to it. As a general proposition, across the broad field of medicine and most of mental health, no one would dream of arguing against the approach in a free society that no patient should be obliged to accept treatment without his consent. But there are difficulties. Like the Government, the Standing Committee was persuaded that there are exceptions in the case of those patients who are so seriously mentally disordered or handicapped that they come within the kind of provisions that we regard as applying to detained mental patients.
I have explained earlier that an individual can be so ill that he has no real insight into his own condition. Sometimes the distress that he suffers as a result of his mental illness may have a physical cause. If there were no provision for any treatment without consent, doctors, nurses and other professional staff would have to set about locking up the patient and making sure that he did nothing to injure himself or other people when they knew perfectly well that they could put right the root of the problem. However, restrained by a law that had such regard for his civil liberties, the patient would be left free to inflict misery on himself by not consenting to treatment he could not understand.

Mr. Charles Irving: I am grateful to the Minister. I may perhaps not have made clear that I was referring to competent patients. It is accepted that some patients are in exactly the position the Minister has stated. We must be careful that competent patients are protected. I want that protection strengthened.

Mr. Kenneth Clarke: That is what we are doing with the voluntary patient and the informal patient, who will still be covered by the general law. It will be unlawful to

administer treatment to him without his consent. We are including a new clause moved by the hon. Member for Stechford which would protect the voluntary patient. We are being rather paternalistic in protecting him against himself. We are saying that there are a few treatments so serious that, even where a voluntary patient consents, there should be a second opinion and the safeguards that are set out to make sure not only that he has understood but also that it is the right thing to do in his interests. We are going a long way down the road that my hon. Friend wishes us to travel.
For detained patients, clause 46 will allow medical treatment to be given without a patient's consent, for the reasons that I have given. My hon. Friend mentioned ECT and potent drugs. Both will be included in clause 42 and the detained patient will have to consent, as my hon. Friend wishes, or, if the patient does not consent, treatment will be able to be given only after a genuinely independent second opinion. I confirm, in answer to one of my hon. Friend's questions, that the MHAC will ensure that the doctor who gives a second opinion will not come from the same hospital and will not have any conflict of interest.
Clause 42(1)(b)deals with potent drugs and includes the three-month rule, which my hon. Friend thinks is rather generous. He mentioned on Second Reading the unsatisfactory way in which that was set out in the Bill. The protections on medicine were so severe that it was argued that a patient could not be given a sleeping pill or an aspirin to relieve his headache without a second opinion being obtained. The danger against which everyone wished to protect patients was the continuing course of heavy drug therapy, which has to be resorted to and can be beneficial in some cases. There are different views about that sort of treatment and it was felt that some safeguards were required.
If we start applying safeguards from the moment any drug treatment is embarked upon there will be difficulties. There will be no lime to see whether the treatment s working and the patient may object bitterly, because he does not understand that it will do him good. The conclusion arrived at in clause 42 is that medical practitioners should have the right to continue a treatment for three months, but if the patient still refuses consent at the end of that period a second opinion will have to be obtained.
ECT will be given only if the patient consents or after a second opinion. ECT no longer appears on the face o f the Bill and the reason for that was accepted on both sides of the Committee. The Government intend to put ECT into the category of treatments that require consent or a second opinion. We have not put it on the face of the Bill, because as practice develops a subsequent Secretary of State may wish to promote it or relegate it from one division to another. Those who have doubts about the treatment think that perhaps it should be put into the clause 41 category. The Government have undertaken to put ECT into the clause 42 category, but as experience is acquired, and if opinion changes, we shall be able to move it into the more serious clause 41 category.
The new clause relates to clause 41. Psychosurgery will be on the face of the Bill. The fact that it is a very serious treatment is borne out by the limited numbers who have it. I am told that there were two such operations carried out on detained patients in 1979, one in 1980 and one in 1981. There is no policy not to carry out such operations,


but the figures show that psychiatrists who take care of detained patients consider such treatment with great caution and operate in a very limited number of cases. It is irreversible and a difficult treatment to give, and it is right to make sure that if it is to be given an independent second opinion, hedged around with all the advice included in clause 42, is needed for informal and voluntary patients as well as for detained patients.
I am grateful to my hon. Friend the Member for Cheltenham. He may not be wholly satisfied, but I am sure that he accepts that we have moved a long way towards his opinion and that of many like him who have a humane and close interest in the problems of our mental hospitals and who wish to see conditions improved.
8.15 pm
I will not embark on a discussion on the problems of Wexham Park hospital at the moment. My hon. Friend the Member for Beaconsfield (Mr. Smith), in whose constituency the hospital is situated, and the hon. Member for Lewisham, West (Mr. Price) have told me that they are likely to refer to the hospital in the debate on a later new clause. Of course, there are two sides to the argument. My hon. Friend the Member for Cheltenham put one side, but I agree with the other side. I accept that the picture that emerges from the Camps report is worrying and reveals a lot of things that have to be put right as regards medical practice, nursing practice and relations between the professions, but I believe that the East Berkshire health authority has handled the situation well since the report came out and has been fully justified in taking the steps that it has. It has followed all the right disciplinary procedures and its actions have been fully supported by the findings of the Camps report. In the interests of those affected, I felt it right to make those comments on my hon. Friend's remarks about the hospital.
The debate has shown that this is a difficult area. I am grateful to the Opposition for extending the safeguards that we have provided into yet another valuable and significant area.

Question put and agreed to.
Clause read a Second time.
Manuscript amendment made:In line 1, leave out "and
44" and insert "44 and45".—[Mr. Allen McKay.]
Clause, as amended, added to the Bill.

New Clause 8

SEXUAL INTERCOURSE WITH PATIENTS

(1) Section 128 of the principal Act (sexual intercourse with patients) shall be amended as follows.

(2) For subsection (1) there shall be substituted—

'(1) Without prejudice to section seven of the Sexual Offences Act 1956, it shall be an offence, subject to the exception mentioned in this section—

 (a) for a person who is an officer on the staff of or is otherwise employed in, or is one of the managers of, a hospital or mental nursing home to have unlawful sexual intercourse with a person who is for the time being receiving treatment for mental disorder in that hospital or home, or to have such intercourse on the premises of which the hospital or home forms part with a person who is for the time being receiving such treatment there as an out-patient;
(b) for a person to have unlawful sexual intercourse with a person who is a mentally disordered

patient and who is subject to his guardianship under this Act or is otherwise in his custody or care under this Act or in pursuance of arrangements under the National Health Service Act 1946 or Part III of the National Assistance Act 1948, or as a resident in a residential home for mentally disordered persons within the meaning of Part III of this Act.'

(3) For subsection (2) there shall be substituted—

'(2) It shall not be an offence under this section for a person to have sexual intercourse with a person if the first person does not know and has no reason to suspect the second person to be a mentally disordered patient.'—[Mr. Terry Davis.]

Brought up, and read the First time.

Mr. Terry Davis: I beg to move, That the clause be read a Second time.
The Special Standing Committee received written evidence from the Royal College of Nursing referring to sections 127 and 128 of the Mental Health Act 1959. Those sections refer, in turn, to the Sexual Offences Act 1956, and the Royal College of Nursing urged that the Committee should include provisions in the Bill to repeal sections 127 and 128 of the 1959 Act.
There was no further reference to the issue in Committee. The Royal College has, therefore, written to all members of the Committee to draw our attention to the matter and especially to section 128. As it points out, section 128 makes it an offence for a male officer to have unlawful sexual intercourse with a female patient if he knows, or has reason to suspect, that she is a mentally disordered patient.
Apparently, the subject is being considered by the Criminal Law Revision Committee, but the Royal College points out that, although that may justify the lack of an amendment to abolish the offence, it does not justify discrimination against male officers. I agree. I wish to make it clear that I am not suggesting any change in the law that makes it an offence for a nurse or any other employee to engage in sexual intercourse with a patient.
I am sure that the House will want to wait for the report of the Criminal Law Revision Committee before reaching any firm opinions. However, I agree with the Royal College of Nursing that it is indefensible in 1982 to discriminate between men and women in this way. I suspect that the reason for this apparent discrimination against men lies in an old-fashioned attitude to women. It is an offence for a male officer to have unlawful sexual intercourse with a female patient, but it is not an offence for a female officer to have unlawful sexual intercourse with a male patient because it is assumed that the man is dominant in such matters. In my view, the House should reject such attitudes and assumptions. That is why I have tabled this new clause. I realise that there is a risk of some hilarity on the subject from some Conservative Members, but I assure them that this is an important issue.
Before the Minister replies, I should add that I realise that the new clause may contain some drafting errors. In particular, the references to the National Health Service Act 1946 and the National Assistance Act 1948 should be references to other more recent Acts of Parliament. Nevertheless, that does not affect the central issue of whether it is right to penalise a male officer and not a female officer. If it is considered right, I submit that we need to consider the reason for such discrimination.

Mr. Mayhew: I agree with the hon. Member for Birmingham, Stechford (Mr. Davis) that this is not a


matter for levity and, to be fair, there has been none from either side about his suggestion. The hon. Gentleman made a sensible point.
The responsibility for the administration of psychiatric hospitals lies, of course, with the Department of Health and Social Security and my right hon. Friend in charge of that Department. The Home Office has a responsibility for the general content of the criminal law. Therefore, there is a degree of overlap in the new clause.
The hon. Member for Stechford fairly pointed out that the Criminal Law Revision Committee is considering carrying out a review of the law relating to sexual offences. It is right that I should make clear that at the end of 1980 its working party specifically stated that it did not consider the Mental Health Act 1959 to be within its terms of reference. Policy on section 128, to which the hon. Gentleman drew particular attention, is an aspect of hospital management and therefore a matter for the DHSS. However, the CLRC's review will cover section 7 of the Sexual Offences Act 1956, as amended by section 127 of the Mental Health Act 1959, which creates the offence of having unlawful sexual intercourse with a mental defective.
The offence to which I have just referred—the general offence, not one related to persons in authority in a psychiatric hospital—can be committed only by a male. It can be committed against a female or a male mental defective, but it can be committed only by a male.
I take note of the hon. Gentleman's argument. I do not doubt that he is right in his analysis of the reasons why the offence in section 128 of the principal Act is expressed to be capable of being committed only by a male. For my part, I do not wish to close the door on any change.
The sole point that I wish to make is that, although the Criminal Law Revision Committee excluded from its consideration offences committed within mental hospitals because, in its view, they fall outside its remit, nevertheless it will be looking at section 7 of the Act to which I have referred. I do not doubt that section 7 will fall within its overall remit. If the committee considers section 7, I have no doubt that it will consider the whole issue of whether it should or should not be extended so that the offence under section 7 may be committed by a female.
In my view, it would be unwise, in the limited ambit to which the new clause refers, to accept the clause when we have not had the benefit of the opinions of the CLRC on the broader offence to which I have referred. That point is particularly strong because the issue was not raised until very recently. It was not raised during the three days of the Special Standing Committee's proceedings when evidence was taken. Nor, I understand, was it raised during the course of the Standing Committee.
Although that may sound like a typically cautious Home Office view, I speak not as a Home Office person but as someone who has had to deal with the law during his professional life. It has turned out to be a mistake to legislate with inadequate thought, reflection and consultation about the possible effects.
I am not unsympathetic to the reasons for the new clause, but it would be unwise to accept it in advance of what the CLRC may say in its report. I do not know what that report will say or whether section 7 will be specifically examined, but the section falls within the remit of the CLRC and it would be wise to await its report in order to have a more informed and better-founded view of the proposals.

Mr. Terry Davis: I was not suggesting that the Minister was engaging in hilarity. It was one of his hon. Friends.
The Minister is being too cautious in saying that it is not possible to amend the law this evening. The Special Standing Committee procedure was severely inhibited by lack of time. We did not have time to discuss with the witnesses everything that they put in their written evidence to us. I should not wish Ministers to believe that the lack of discussion of this detailed and minor point—in comparison with the clauses on consent to treatment and others—showed that no members of the Committee were interested. I say that because the Royal College of Nursing told all members of the Committee that, since the Committe stage was completed, it has corresponded with and been told by the Home Office that the Department intends to do nothing because the matter was not mentioned to the Special Standing Committee. Perhaps what I have said is an unfair summary of the letter sent by the Royal College of Nursing, but it is its summary.
The Minister displayed great sympathy for my argument that we should be careful in discriminating between men and women. He made it clear that, if the matter is reported on by the Criminal Law Revision Committee, he will be sympathetic towards removing any suggestion that me; should be penalised or prosecuted and that women should not. Therefore, I beg to ask leave to withdraw the clause.

Motion and clause, by leave, withdrawn.

New Clause 9

DETENTION OF MENTALLY DISORDERED PERSONS FOUND IN PUBLIC PLACES

(1)' Section 136 of the principal Act (mentally disordered persons found in public places) shall be amended as follows.

(2) In subsection (2) (period of detention at a place of safety )for the words "seventy-two hours" there shall be substituted the words "twenty-four hours". ' .—[Mr . Terry Davis.]

Brought up, and read the First time.

Mr. Terry Davis: I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker: With this, it will be convenient to discuss new clause 10—Record of detention of mentally disordered persons found in public places.
In section 136 of the principal Act (mentally disordered persons found in public places) after subsection (2) there shall be inserted—
'(2A) Where any person is detained at a place of safety under this section the constable shall record that fact in writing .' .

Mr. Davis: The new clauses deal with two matters that were considered by the Standing Committee. The first clause, which deals with the period during which someone can be detained, was debated at great length in Committee. The subject matter of the second clause came up during our deliberations. It is so important that it merits a new clause being tabled. The new clauses concern section 136 of the Mental Health Act 1959, which states:
If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety".


The place of safety can be a hospital or it can be, and often is, a police station. That is a very wide powe. It is much wider than the powers given to doctors to detain someone under sections 25, 26, 29 or 30 of the Mental Health Act 1959 or the powers given to nurses under clause 6 of this Bill. The other powers can be exercised only if the doctors or nurses believe that detention is necessary for the protection of other people or for the health or safety of the person. The constable can decide that it is necessary in the interests of the person whom he finds in a public place. That is a lower consideration.
8.30 pm
As the law stands and as it will stand when the Bill becomes an Act, a doctor or nurse may decide, as a matter of professional judgment, that it is not right to detain someone and to deprive him of his liberty, but a police constable may take a different view on different criteria—what he considers to be in the interests of the person—and may deprive him of his liberty without redress or protection, except that the person must be examined by a doctor and interviewed by a mental welfare officer within 72 hours. The person deprived of his liberty must be examined by a doctor and interviewed by a mental welfare officer, but section 136 contains no such requirement. It says only that the police constable can detain someone for 72 hours for the purpose of examination by a doctor and interview by a mental welfare officer. The law is not clear about what happens if such an examination and interview do not take place. I shall return to that point when I discuss new clause 10.
I suggested in Committee that the period should be reduced from 72 hours to six hours. The British Medical Association suggested in evidence to the Committee that the period should be only four hours. In reply, the Minister for Health argued that six hours would not be long enough in some cases. He referred to the difficulty of obtaining a doctor in a remote area and also to the time that it may take to arrange for admission to a hospital, especially if a police constable had found someone wandering the streets at midnight.
My right hon. Friend the Member for Norwich, North (Mr. Ennals) expressed some reservations about my suggestion of six hours, although that was a longer period than that suggested by the British Medical Association. My right hon. Friend believed that 12 hours would be better. I have gone even further in a spirit of compromise and I have tabled a new amendment that would allow 24 hours for a doctor to examine and a mental welfare officer to interview someone detained by a police constable. That wide and important power should be exercised with discretion but, most importantly, someone who is detained under section 136 should not be kept waiting for 72 hours in a police station in order to be examined by a doctor and interviewed by a  mental welfare officer. I wish to instil more urgency into the procedure.
New clause 10 refers to the record that should be kept of the detention of a mentally disordered person found in a public place. I am more worried about the apparent lack of records or comprehensive statistics of what happens to those who are detained under section 136 than about the period for which they are detained. From the inpatient 

statistics contained in the Mental Health Inquiry for England in 1977, we know that 1,494 people were admitted to hospital under section 136.
We also know that there was a tremendous difference between regions. Inexplicably, admissions in the Wessex region were twice as high as those in the Mersey region, although the populations are similar. East Anglia has a rate of admissions that is four times that of Merseyside. However, I cannot discover comprehensive statistics on the use of section 136. We know how often the section results in people being admitted to hospital but we do not know how often it is used by the police to detain someone for up to 72 hours, with the result that that person is released because he has been examined by a doctor who decides that it is not necessary for him to be admitted to hospital. We do not even know how many people are detained under section 136 during a year, let alone what happens to them.
In the White Paper issued by the Labour Government in 1978, it was noted that there was no statutory form, equivalent to the forms used for sections 25, 26 and 29, stating the reasons for the use of section 136. The White Paper stated clearly that the DHSS should negotiate with the police and the local authorities to determine the information required. We were also promised that the same monitoring arrangements for compulsory admission would apply. That was four years ago. The Government do not seem to have done anything about the problem and the Opposition have tabled the new clause as a first step.

Mr. Ennals: I shall take only a minute or two to support my hon. Friend the Member for Birmingham, Stechford (Mr. Davis) because he has deployed the argument well. We considered the matter at length in Standing Committee. It is difficult to understand why the Government have not accepted the principle involved. Perhaps the words of my hon. Friend the Member for Stechford and my less adequate remarks will convince the Government that once again they should show their sense and sensibility and recognise the wisdom of our argument.
None of us doubts the wisdom of giving powers to the police to enable them to detain, for a time, people who by their nature appear to a policeman to be in need of treatment in a safe place. The police must have the power to take such a person to a safe place.
My hon. Friend the Member for Stechford is right to say that to many policemen the safe place is a police station. Whether or not one is mentally disordered, a police station is not a pleasant place. We must not assume that a person so detained is mentally disordered. A policeman cannot determine whether a person is mentally disordered. That is for people with professional experience to decide. That is dealt with in another part of the Bill. However, a policeman is entitled to decide that, by his conduct, a person is mentally disordered and that he should be taken to a safe place for his own protection and the protection of the public.
Why must we decide on 72 hours? I was staggered at the differences in performance described by my hon. Friend the Member for Stechford. He said that section 136 is used four times as often in East Anglia as it is in Merseyside. It cannot be that the crime rate is higher in East Anglia or that the incidence of mental disorder is higher. I assume that the reason is that East Anglia is rural. That is why there was some disagreement between myself and my hon. Friend when I argued that it might take longer


in a rural community to get hold of a doctor or a social worker to interview a person thought to be mentally disordered. Where in the country—except perhaps in the Western Isles—is it not possible to contact a doctor within 72 hours? I cannot believe that it would take so long, even with the present state of the Health Service. Where in the country is it impossible for a doctor or a health worker within that time to take a person out of the hands of a police officer who, professionally, is not qualified to determine whether a person is disordered, let alone what treatment he should have?
My hon. Friend has been modest in saying that the figure of 24 hours should be inserted. One could almost ask where in the United Kingdom is there a place where, within the space of 24 hours, one could not find a doctor and a mental health officer. One could say the same about 12 hours. This is a question, not only of the reality that it must be possible to find a doctor and a mental welfare officer, but of human liberties. It could happen that someone could be held in a police station for 72 hours without having a doctor or a mental welfare officer to see him because a policeman, one policeman only, at one time thought that that person was mentally disordered. Surely the Minister will agree that that is a breach of civil liberties. Therefore, he must agree that the figure of 72 hours must be reduced.
We argued that in Committee but we did not succeed. I cannot understand why we did not succeed because the argument seemed to be absolutely apparent. I hope that the Minister will agree at least to reduce the figure below 72 hours. Whatever figure he decides upon, whether it is 24 or even 36 hours, I hope that he will introduce an amendment in another place which will be accepted.
I should like to support my hon. Friend's amendment very strongly, although I wish the period were shorter. I should also like to support my hon. Friend's second point because a detention of up to 72 hours does not have to be reported. We do not know how many of such cases there are. Almost everything else that a policeman does in terms of detaining someone must be entered on a police report. No one would argue that it would be right and proper for a person to be detained, be he mentally disordered or suspected of a crime, without the matter being reported. We urge the Minister to support our amendments to put that right.

Mr. Mayhew: I am grateful to the right hon. Member for Norwich, North (Mr. Ennals) and the hon. Member for Birmingham, Stechford (Mr. Davis) for the way that they have addressed themselves to these important issues. The effect of new clause 9 would be to reduce from 72 hours to 24 hours the period during which a person who appears to a constable to be mentally disordered may be detained in a place of safety under section 136 of the Act.
As the hon. Member for Stechford rightly reminded us, a place of safety may be a hospital or a police station. It is important, with regard to what the hon. Gentleman said about the application of this power of detention in a police station, to lay emphasis on the words in section 136
if he thinks it necessary to do so in the interests of that person or for the protection of other persons.
I shall return to that later. I appreciate that it would be more difficult for a police constable to contend that he really considered it to be in the interests of the person concerned that he should be held in a police station for 72 hours than it would be for a doctor in a hospital to contend

that he thought it was in the interests of that person to detain him in hospital for 72 hours. I am sure that is why, in the vast majority of cases, someone is detained in a police station under section 136 for a few hours only. If a police constable were to detain someone for 72 hours in a police station, it would be difficult for him to say that it was in the interests of the chap concerned. I am saying in a rather informal way that I do not think that such detention takes place in a police station.
8.45 pm
The Butler committee recorded that the National Council for Civil Liberties had suggested a reduction from 72 hours to 24 hours. The hon. Member for Stechford has reminded the House that a much shorter period has also been considered. The Butler committee rejected 24 hours. The consultative document issued by the Labour Government in 1976, to which the right hon. Member for Norwich, North referred in another context, noted that MIND had also suggested such a change. The White Paper records that most commentators agreed that, for practical purposes, the existing periods, both for the police to deal with a case under section 136 and for a magistrate to exercise a similar power under section 155, were, to use its words, "about right".
A reduction to 24 hours was proposed in another place, but, after doubt had been expressed, the proposition was withdrawn. In the Special Standing Committee the hon. Member for Steel-ford proposed to reduce the maximum duration of detention under section 136 to only six hours. He told us what took place, and I acknowledge at once the flexibility that he has shown in proposing 24 hours. There was general agreement in the Special Standing Committee that six hours was too short to enable arrangements for hospital admission to be made. That is the factor on which we should be concentrating. In practice, no police officer wants to have someone in a police station who he thinks is mentally disordered and in trouble by reason of that. He wants to get him to a hospital as soon as possible. That is the reality of the matter.
We should be considering the issue rather more closely from the point of view of someone who is in hospital and in the care of a doctor. What would be the position if the period for which he could be detained were to be reduced to 24 hours from the present 72 hours? From the police point of view, it would not matter very much if the
amendment were accepted. It seems, from our information, that seldom do the police detain anyone for longer than a few hours.

Mr. Ennals: Does the Minister know of any cases of people being held in a police station under section 136 for more than 24 hours?

Mr. Mayhew: I do not know of any such cases. I shall turn to the statistics when dealing with new clause 10. The police record the exercise of their powers in every case under section 136, but that information is not collated centrally either in the Home Office or even by chief constables. It is recorded under police procedure, although there is no statutory obligation to do so.

Sir Albert Costain: One gets the impression from Labour Members that police constables can keep people in police stations for 72 hours without telling anybody about it. Surely no person can be detained in a police station without a record being kept.

Mr. Mayhew: My hon. Friend is right. The information would appear in the occurrence book if nowhere else. I understand that a special record is made of each occasion on which the police exercise their powers under section 136. It is no more the case that this can happen without any record being made than it is the case that a police officer would want to have a mentally disordered person, who could give trouble, in the police station for a minute longer than necessary. The police officer would try to get that person into a hospital.
When someone is transferred to a hospital after he has been picked up by the police, and perhaps kept in a police station for a few hours until such time as it is possible to get him into a hospital—it is not always an easy thing to do immediately—the doctors have to start from the beginning. If we were to reduce the period to 24 hours, which would run from the time when the police officer first detained the person, there might be the unintended result that the hospital would be led either to discharge the person against its better judgment, when a little more time would be needed to enable the doctors to make a reliable diagnosis, or to make greater use of the formal powers of admission and detention for longer periods provided by other sections of the Act. That is a fear and a danger.
That is why I agree with the conclusion of the Butler committee:
the law must make some allowances for exceptional difficulties, such as might arise, for example, in remote areas or at holiday periods. In the absence of any specific evidence of abuse by unnecessarily long detention in a police station or arbitrary admission to hospital we think it would be difficult to justify amending the law.
That was a sound conclusion. One must have regard to a case in which it is clearly desirable and in the patient's interest for him to remain in hospital for a little longer. The effect of reducing the period to 24 hours might compel doctors to discharge the patient prematurely or to use section 25, which involves detention for up to 28 days, or section 26, which involves detention for up to six months. It is better that section 136 should continue to confer authority for detention for a period of no longer than 72 hours. After that the patient may have recovered sufficiently to be discharged, he may be willing to remain on a voluntary basis as an informal patient, or it may have become apparent that he should be subject to detention under one of the longer-term powers, but at least the doctors will have had a proper opportunity to look at the patient's case.

Mr. Terry Davis: Will the Minister explain why the hospitals would use section 25 or section 26 instead of section 29?

Mr. Mayhew: Perhaps hospitals could use section 29. It would be open to a hospital to use any of those sections. It is not in the interests of patients to run that risk merely to reduce from 72 hours to 24 hours the maximum period when no evidence of abuse or arbitrary admission is available.
With regard to new clause 10, I take the point that has been made about the desirability of knowing what use is made of the powers. It is right to say that our information is incomplete. The reason is that, while the police make a record of those matters, it is not done at chief constable level or at police force headquarters level, and certainly not at a central point.
I should like to give an undertaking. I have been reminded by the right hon. Member for Norwich, North 

of what the Labour Government's White Paper said. I undertake to give careful consideration to the point that has been made about the previous Government's plans to issue guidance about records concerning the use of that power. Those plans related to what would happen after the passage of an amending Act. We now have an amending Bill, and it is fitting that we should consider doing the same thing as the previous Government. We shall consider that matter for the reasons that have been advanced.
The right hon. Gentleman asked why the period should be 72 hours. Attention has been drawn to the fact that the period must be in the interests of the person concerned. I am entitled to state that no one is challenging the principle of a power to detain under section 136. If the principle is not challenged, the question remains: what is the right limit to enable that power sensibly to be exercised? No one on these Benches wants to see anyone detained in anything approaching circumstances that would constitute a breach of fundamental rights and liberties. We wish to see the power limited to its proper exercise in the interests of the person involved or of other people.
I believe that the retention of the present limit is justified, as the Butler committee considered a few years ago. I hope that the hon. Member for Stechford will withdraw his amendment.

Mr. Terry Davis: I am a little disappointed at much of what the Minister said. No one is questioning the need for section 136 and for police constables to have power to detain people whom they find in public places and who appear to be mentally disordered, with the safeguards that are written into the section. The amendments would  not limit or restrict the power. No one suggested that there were abuses or produced examples. But if no records are collated or statistics made available, it is difficult to put cases into perspective. If we produced anecdotal cases the Minister would point out that they were exceptions and to use exceptions as a basis is bad law, we should look at the use of section 136 in its entirety. But we cannot know the way in which it is used, as the information is not available.
I am grateful to the Minister for undertaking to look into the matter and to consider what records should be kept. I hope that he will also consider the provision of statistics. We have statistics about the use of other sections of the Mental Health Act. We know how many people are admitted to hospital under each section. We know how many people are admitted to hospital under section 136, but we do not know how many are not, even though they have been detained for up to 72 hours. That is pertinent to civil liberty.
If it is necessary for a police constable to be given the wide power to detain someone who is mentally disordered, who is in immediate need of care and control and who should be detained in his own interests or to protect other people—all in the opinion of the police constable—we should require him to record those facts in writing. We need to monitor what happens so that we know how often police constables are right and how often they are mistaken.
I do not suggest that the power is widely abused, contrary to what the hon. Member for Folkestone and Hythe (Sir A. Costain) said. Academic studies suggest that police constables are good at deciding who is mentally disordered, which may be surprising as they have no


training in psychiatric medicine. But there is the question of civil liberties and we do not know how often they make mistakes.

Mr. Proctor: The hon. Gentleman is probably referring to my saying in Committee that a survey had shown that the police were better at judging these matters than general practitioners.

Mr. Davis: And I pointed out that we were talking about different samples. A large number of the people wandering the streets in the early hours of the morning may well be mentally disordered. Doctors consider people admitted from their homes in varying circumstances. We are not comparing like with like. It is important to compare apples with apples and not apples with pears. I am not prepared to state that police constables are better at diagnosing mental disorders than doctors are, although there is some evidence to suggest that they are generally quite good at doing so. However, we do not know how often they make mistakes, and that is the purpose of the new clauses. It is an important matter of civil liberty. Police constables may be right 100 per cent. of the time, but it is important that Parliament is sure that they are, and that it is not a lower percentage.

9 pm

Mr. Christopher Price: Will not my hon. Friend consider the slightly ambivalent attitude of the Home Office? In its regulations about confessions to police officers, it insists that they cannot possibly determine whether the individual making the confession is mentally disordered, and that it is unreasonable to expect them to have such expertise. That point may arise when the House discusses the proposed police Bill next year. Yet the Home Office considers that police constables can determine mental disorder when detaining people and that they do not need to make a report to justify their decision.

Mr. Davis: My hon. Friend has told me something that I did not know. I am impressed by the information, which supports my case. We should ensure that a proper return is made by each police force to the Home Office of the use of section 136. We should require the Home Office to publish those statistics in the public interest. I am not sure whether the Minister went that far in his undertaking. I hope that he did, and will arrange for the statistics to be collated. If he does, I shall willingly withdraw new clause 10 as that will give us everything that we have requested. I have no wish to press clauses that have no purpose.
The new clause requires that police officers should record facts in writing. We understood that that was not current practice. However, the Minister said that the facts are recorded in writing, but not subsequently reviewed by a senior officer and that the statistics are not collated. We wish to provide in statute law that it is necessary for a police constable to record the facts in writing. We expect any Home Secretary to issue regulations, guidance or whatever he wishes to call it—perhaps a Home Office code of practice—to ensure that policemen record the facts on a standard form, and that the statistics are then collated. The vehicle for such monitoring is the requirement for a police officer to record the facts in writing.
I turn to new clause 9. The Minister said that he did not think that someone would be detained for 72 hours in a police station. He fairly said that the overwhelming view in Committee was that six hours would be too short a time.

I recognise that. I suggested six hours in Committee, and almost everyone who spoke said that it was an unreasonably short time. I listened, and have now tabled new clause 9 to make the period 24 hours. I hope that the Minister will also listen to the views expressed. I do not think that the Government have listened to the debate and recognised the important point that 72 hours is definitely too long. There was no general agreement in Committee that 72 hours was the right period, only that six hours was too short.
The Minister said that a shorter period would not matter to the police, but that it would create difficulties for hospitals. I am impressed that a Minister from the Home Office said that, and not a Minister from the Department of Health and Social Security. The Minister appeared to ignore the effect of section 29. He spoke of sections 25 and 26 and said that if provision of section 136 were reduced to 24 hours, doctors in hospitals would use sections 25 and 26 to detain people for longer periods than 72 hours. I beg to disagree with that. I am quite sure that if there was a problem because section 136 was reduced to 24 hours, doctors in hospitals would use section 29.
The limit under that section is 72 hours. However, many safeguards are attached to section 29, and in the Special Standing Committee we spent many hours debating them. We spent hours discussing the relationship between the two doctors who might sign an application for an emergency admission for up to 72 hours. Under section 29 we say that there must be independent medical opinions before someone can be detained for 72 hours, yet at the same time we are saying that a newly qualified police constable on his own judgment can detain someone for up to 72 hours in a police station rather than in a hospital. That is going much too far.
We spent much time discussing the safeguards under section 29. For example, we made sure that psychiatrists must obtain second opinions before detaining someone for 72 hours. Apparently the Minister is happy to leave it to a police constable to decide to detain someone for 72 hours without a second opinion from someone qualified in the treatment of mental. disorder. I believe that the Minister has got it wrong. The hon. and learned Gentleman has said that it would not matter from a police point of view. Let a Minister from the DHSS tell us that it matters from the hospitals' point of view.

Mr. Mayhew: I hope that we shall avoid any possible misunderstanding. The hon. Gentleman will acknowledge that section 29 might not always be available to a hospital under these circumstances. The additional safeguards in the Bill require, for example, that only the nearest relative may apply under section 29. That may not be possible within the time limit imposed by the Bill-24 hours of medical examination. That is why I said, I believe accurately, that, although the hospital might be able to use section 29, it did not always follow that it could.

Mr. Davis: As T have said, let a Minister from the DHSS explain the situation. After all, a police constable will not take someone whom he believes to be mentally disordered to a general hospital. He will take such a person to a hospital where a psychiatrist is available. If the Minister were to say that hospitals cannot deal with these problems within 24 hours, I would be impressed, but I am not impressed by his assertion that it is necessary to allow a policeman 72 hours to detain someone in a hospital. That is too wide a power.
It should be possible to decide within 24 hours whether or not someone should be kept in hospital. It should be possible for that person to be examined by a medical practitioner and to be interviewed by a mental welfare officer. That, after all, is the purpose of section 136. It is not the purpose of that section, as the Minister seemed to suggest, to allow time for someone to cool down, to stop simmering, to be cured or to relax. The object of allowing a policeman to detain someone for up to 72 hours is to enable that person to be examined by a medical practitioner and to be interviewed by a mental welfare officer. I believe that can be done within 24 hours, and we shall therefore press that new clause to a Division.
I again ask the Minister for an undertaking that the statistics about the use of section 136 will be collated by the Home Office and made available to the public so that we can all know what use is made of that section. The hon. Member for Folkestone and Hythe (Sir A. Costain) is sure, but I hope that there will be no abuses whatever. We shall all be pleased if that is the case, but we should at least have the facts in the open.

Sir Albert Costain: The hon. Gentleman talks as if a newly qualified police constable has a private police station to which he can march a person and lock him up for 72 hours. It is too stupid to contemplate. There must be some other police constable at the police station.

Mr. Davis: The hon. Gentleman is obviously surprised, but it is a fact that as a result of section 136 a police constable takes a decision which does not need to be confirmed by anyone else; nor by his sergeant, an inspector, a superintendent or any other police officer. It is the police constable who makes the decision which can result in someone being detained in a police station for up to 72 hours for an examination by a medical practitioner and an interview by a mental welfare officer.
I accept that police constables should have that power. I only want to establish how often it is used and with what success. Labour Members are not criticising the police; we simply want to establish the facts about the use of section 136. We are not satisfied that it should be left in the present unknown state. Therefore, unless the Minister can give us an assurance that he will ensure that statistics are collated, we shall have no alternative but to press new clause 9 to a Division.

Question put, That the clause be read a Second time:—
The House divided:Ayes 100, Noes 147.

Division No. 303]
[9.12 pm


AYES


Archer, Rt Hon Peter
Dean, Joseph(Leeds West)


Atkinson, N.(H'gey,)
Dixon, Donald


Bagier, Gordon A.T.
Dobson, Frank


Beith, A. J.
Dormand, Jack


Benn, Rt Hon Tony
Douglas, Dick


Bennett, Andrew(St'kp't N)
Duffy, A. E. P.


Campbell-Savours, Dale
Dunnett, Jack


Canavan, Dennis
Dunwoody, Hon Mrs G.


Cocks, Rt Hon M.(B'stol S)
Eadie, Alex


Cowans, Harry
Eastham, Ken


Craigen, J. M.(G'gow, M'hill)
Ellis, R.(NE D'bysh're)


Crowther, Stan
Ennals, Rt Hon David


Cryer, Bob
Evans, loan(Aberdare)


Cunningham, Dr J.(W'h'n)
Evans, John(Newton)


Dalyell, Tam
Ewing, Harry


Davidson, Arthur
Forrester, John


Davis, Clinton(Hackney C)
Foster, Derek


Davis, Terry(B'ham, Stechf'd)
Foulkes, George





Freeson, Rt Hon Reginald
Powell, Raymond(Ogmore)


Grimond, Rt Hon J.
Ross, Ernest(Dundee West)


Hamilton, James(Bothwell)
Sever, John


Hamilton, W. W.(C'tral Fife)
Silkin, Rt Hon S. C.(Dulwich)


Hardy, Peter
Skinner, Dennis


Harrison, Rt Hon Walter
Soley, Clive


Haynes, Frank
Spearing, Nigel


Homewood, William
Spriggs, Leslie


Hooley, Frank
Steel, Rt Hon David


Howells, Geraint
Stoddart, David


Hoyle, Douglas
Stott, Roger


Hughes, Robert(Aberdeen N)
Thomas, Dafydd(Merioneth)


Johnston, Russell(Inverness)
Thomas, Mike(Newcastle E)


Jones, Barry(East Flint)
Thomas, Dr R.(Carmarthen)


Lamond, James
Thorne, Stan(Preston South)


Leighton, Ronald
Tinn, James


Lewis, Ron(Carlisle)
Torney, Tom


Litherland, Robert
Wainwright, E.(Dearne V)


Lofthouse, Geoffrey
Wainwright, R.(Colne V)


McCartney, Hugh
Watkins, David


McKay, Allen(Penistone)
Weetch, Ken


McNamara, Kevin
Welsh, Michael


McWilliam, John
White, Frank R.


Marshall, D(G'gow S'ton)
Whitehead, Phillip


Mason, Rt Hon Roy
Whitlock, William


Maynard, Miss Joan
Wigley, Dafydd


Meacher, Michael
Winnick, David


Milian, Rt Hon Bruce
Woolmer, Kenneth


Morris, Rt Hon A.(W'shawe)
Wright, Sheila


Morris, Rt Hon C.(O'shaw)
Young, David(Bolton E)


Palmer, Arthur



Pavitt, Laurie
Tellers for the Ayes:


Penhaligon, David
Dr. Edmund Marshall and


Pitt, William Henry
Mr. George Morton.




NOES


Alexander, Richard
Goodhart, Sir Philip


Alison, Rt Hon Michael
Goodhew, Sir Victor


Ancram, Michael
Goodlad, Alastair


Aspinwall, Jack
Grant, Anthony(Harrow C)


Atkinson, David(B'm'th,E)
Grieve, Percy


Baker, Nicholas(N Dorset)
Griffiths, Peter Portsm'th N)


Bendall, Vivian
Grist, Ian


Benyon, Thomas(A'don)
Grylls, Michael


Berry, Hon Anthony
Hamilton, Michael(Salisbury)


Best, Keith
Hampson, Dr Keith


Biggs-Davison, Sir John
Hannam, John


Blackburn, John
Haselhurst, Alan


Boscawen, Hon Robert
Heddle, John


Bottomley, Peter(W'wich W)
Henderson, Barry


Bright, Graham
Hill, James


Brinton, Tim
Holland, Philip(Carlton)


Brooke, Hon Peter
Hooson, Tom


Brown, Michael(Brigg Sc'n)
Irvine, Bryant Godman


Bruce-Gardyne, John
Jenkin, Rt Hon Patrick


Buck, Antony
Jopling, Rt Hon Michael


Budgen, Nick
Kaberry, Sir Donald


Bulmer, Esmond
Kershaw, Sir Anthony


Carlisle, John(Luton West)
Knight, Mrs Jill


Chapman, Sydney
Lang, Ian


Clark, Hon A.(Plym'th, S'n)
Lawrence, Ivan


Clarke, Kenneth(Rushcliffe)
Lester, Jim(Beeston)


Cockeram, Eric
Lloyd, Peter(Fare ham)


Cope, John
Loveridge, John


Cormack, Patrick
Luce, Richard


Costain, Sir Albert
Lyell, Nicholas


Cranborne, Viscount
McCrindle, Robert


Crouch, David
Macfarlane, Neil


Dickens, Geoffrey
MacKay, John(Argyll)


Dover, Denshore
Macmillan, Rt Hon M.


Dunn, Robert(Dartford)
McNair-Wilson, M.(N'bury)


Eden, Rt Hon Sir John
Madel, David


Fairgrieve, Sir Russell
Major, John


Faith, Mrs Sheila
Marlow, Antony


Finsberg, Geoffrey
Mather, Carol


Fookes, Miss Janet
Maude, Rt Hon Sir Angus


Forman, Nigel
Mawby, Ray


Fowler, Rt Hon Norman
Mawhinney, Dr Brian


Gardiner, George(Reigate)
Maxwell-Hyslop, Robin


Garel-Jones, Tristan
Mayhew, Patrick






Mellor, David
Skeet, T. H. H.


Meyer, Sir Anthony
Smith, Tim(Beaconsfield)


Mills, lain(Meriden)
Speed, Keith


Moate, Roger
Speller, Tony


Morrison, Hon C.(Devizes)
Spicer, Jim(West Dorset)


Murphy, Christopher
Spicer, Michael(S Worcs)


Neale, Gerrard
Squire, Robin


Needham, Richard
Stanbrook, Ivor


Neubert, Michael
Stradling Thomas, J.


Newton, Tony
Taylor, Teddy(S'end E)


Osborn, John
Temple-Morris, Peter


Page. John(Harrow, West)
Thomas, Rt Hon Peter


Page, Richard(SW Herts)
Thompson, Donald


Parris, Matthew
Thornton, Malcolm


Pattie, Geoffrey
Townend, John(Bridlington)


Percival, Sir Ian
Trippier, David


Pollock, Alexander
van Straubenzee, Sir W.


Price, Sir David(Eastleigh)
Viggers, Peter


Proctor, K. Harvey
Waddington, David


Raison, Rt Hon Timothy
Waller, Gary


Renton, Tim
Ward, John


Ridsdale, Sir Julian
Watson, John


Rippon, Rt Hon Geoffrey
Wells, Bowen


Roberts, M.(Cardiff NW)
Wells, John(Maidstone)


Rossi, Hugh
Wheeler, John


Rumbold, Mrs A. C. R.
Wickenden, Keith


Sainsbury, Hon Timothy
Wolfson, Mark


St. John-Stevas, Rt Hon N.



Shaw, Giles(Pudsey)
Tellers for the Noes:


Shaw, Sir Michael(Scarb')
Mr. Archie Hamilton and


Shepherd, Colin(Hereford)
Mr. David Hunt.


Sims, Roger

Question accordingly negatived.

New Clause 10

RECORD OF DETENTION OF MENTALLY DISORDERED PERSONS FOUND IN PUBLIC PLACES

In section 136 of the principal Act (mentally disordered persons found in public places) after subsection (2) there shall be inserted —
(2A) Where any person is detained at a place of safety under this section the constable shall record that fact in writing."—[Mr. Terry Davis.]
Brought up and read the First time.
Motion made, and Question put, That the clause be read a Second time:—
The House divided:Ayes 102, Noes 146.

Division No. 304]
[9.20 pm


AYES


Archer, Rt Hon Peter
Dunnett, Jack


Atkinson, N.(H'gey,)
Dunwoody, Hon Mrs G.


Bagier, Gordon A.T.
Eadie, Alex


Beith, A. J.
Eastham, Ken


Benn, Rt Hon Tony
Ellis, R.(NE D'bysh're)


Bennett, Andrew(St'kp't N)
Ennals, Rt Hon David


Campbell-Savours, Dale
Evans, loan(Aberdare)


Canavan, Dennis
Evans, John(Newton)


Cocks, Rt Hon M.(B'stol S)
Ewing, Harry


Cowans, Harry
Forrester, John


Craigen, J. M.(G'gow, M'hill)
Foulkes, George


Crowther, Stan
Freeson, Rt Hon Reginald


Cryer, Bob
Grimond, Rt Hon J.


Cunningham, Dr J.(W'h'n)
Hamilton, James(Bothwell)


Dalyell, Tam
Hamilton, W. W.(C'tral Fife)


Davidson, Arthur
Hardy, Peter


Davis, Clinton(Hackney C)
Harrison, Rt Hon Walter


Davis, Terry(B'ham, Stechf'd)
Homewood, William


Dean, Joseph(Leeds West)
Hooley, Frank


Dixon, Donald
Howells, Geraint


Dobson, Frank
Hoyle, Douglas


Dormand, Jack
Hughes, Robert(Aberdeen N)


Douglas, Dick
Johnston, Russell(Inverness)


Duffy, A. E. P.
Jones, Barry(East Flint)





Lamond, James
Soley, Clive


Leighton, Ronald
Spearing, Nigel


Lewis, Ron(Carlisle)
Spriggs, Leslie


Litherland, Robert
Steel, Rt Hon David


Lofthouse, Geoffrey
Stoddart, David


McCartney, Hugh
Stott, Roger


McKay, Allen(Penistone)
Thomas, Dafydd(Merioneth)


Maclennan, Robert
Thomas, Mike(Newcastle E)


McNamara, Kevin
Thomas, Dr R.(Carmarthen)


McWilliam, John
Thorne, Stan(Preston South)


Marshall, D(G'gow S'ton)
Tinn, James


Marshall, Dr Edmund(Goole)
Torney, Tom


Mason, Rt Hon Roy
Wainwright, E.(Dearre V)


Maynard, Miss Joan
Wainwright, R.(Colne V)


Meacher, Michael
Watkins, David


Milian, Rt Hon Bruce
Weetch, Ken


Morris, Rt Hon A.(W'shawe)
Welsh, Michael


Morris, Rt Hon C.(O'shaw)
White, Frank R.


Morton, George
Whitehead, Phillip


Palmer, Arthur
Whitlock, William


Pavitt, Laurie
Wigley, Dafydd


Penhaligon, David
Winnick, David


Pitt, William Henry
Woolmer, Kenneth


Powell, Raymond(Ogmore)
Wright, Sheila


Price, C.(Lewisham W)
Young, David(Bolton E)


Ross, Ernest(Dundee West)



Sever, John
Tellers for the Ayes:


Silkin, Rt Hon S. C.(Dulwich)
Mr. Frank Haynes and


Skinner, Dennis
Mr. Derek Foster.




NOES


Alexander, Richard
Griffiths, Peter(Portsrn'th N)


Alison, Rt Hon Michael
Grist, Ia


Ancram, Michael
Grylls, Michael


Aspinwall, Jack
Hamilton, Hon A.


Atkinson, David(B'm'th,E)
Hampson, Dr Keith


Baker, Nicholas(N Dorset)
Hannam, John


Bendall, Vivian
Haselhurst, Alan


Benyon, Thomas(A don)
Heddle, John

Berry, Hon Anthony
Henderson, Barry


Best, Keith
Hill, Jame


Biggs-Davison, Sir John
Holland, Philip(Carlton)


Blackburn, John
Hooson, Tom


Boscawen, Hon Robert
Irvine, Bryant Godman


Bottomley, Peter(W'wich W)
Jenkin, Rt Hon Patrick


Bright, Graham
Jopling, Rt Hon Michael


Brinton, Tim
Kaberry, Sir Donal


Brooke, Hon Peter
Kershaw, Sir Anthon


Brown, Michael(Brigg &amp; Sc'n)
Knight, Mrs Jill


Bruce-Gardyne, John
Lawrence, Ivan


Buck, Antony
Lester, Jim(Beeston


Budgen, Nick
Lloyd, Peter(Fareham)


Bulmer, Esmond
Loveridge, John


Carlisle, John(Luton West)
Luce, Richard


Chapman, Sydney
Lyell, Nicholas


Clark, Hon A.(Plym'th, S'n)
McCrindle, Robert


Clarke, Kenneth(Rushcliffe)
Macfarlane, Neil


Cockeram, Eric
MacKay, John(Argyll)


Cope, John
Macmillan, Rt Hon M.


Cormack, Patrick
McNair-Wilson, M.(N'bury)


Costain, Sir Albert
Madel, David


Cranborne, Viscount
Major, Joh


Crouch, David
Marlow, Antony


Dickens, Geoffrey
Mather, Caro


Dover, Denshore
Maude, Rt Hon Sir Angus


Dunn, Robert(Dartford)
Mawby, Ra


Eden, Rt Hon Sir John
Mawhinney, Dr Brian


Fairgrieve, Sir Russell
Maxwell-Hyslop, Robin


Faith, Mrs Sheila
Mayhew, Patrick


Finsberg, Geoffrey
Mellor, David


Fookes, Miss Janet
Meyer, Sir Anthony


Forman, Nigel
Mills, lain(Meriden


Fowler, Rt Hon Norman
Moate, Roge


Gardiner, George(Reigate)
Morrison, Hon C.(Devizes)


Garel-Jones, Tristan
Murphy, Christophe


Goodhart, Sir Philip
Neale, Gerrard


Goodhew, Sir Victor
Needham, Richard


Goodlad, Alastair
Neubert, Michael


Grant, Anthony(Harrow C)
Newton, Tony


Grieve, Percy
Osborn, Joh






Page, John(Harrow, West)
Spicer, Michael(S Worcs)


Page, Richard(SW Herts)
Squire, Robin

Parris, Matthew
Stanbrook, Ivor


Pattie, Geoffrey
Stradling Thomas, J.


Percival, Sir Ian
Taylor, Teddy(S'end E)


Pollock, Alexander
Temple-Morris, Peter


Price, Sir David(Eastleigh)
Thomas, Rt Hon Peter


Proctor, K. Harvey
Thompson, Donald


Raison, Rt Hon Timothy
Thornton, Malcolm


Renton, Tim
Townend, John(Bridlington)


Ridsdale, Sir Julian
Trippier, David


Rippon, Rt Hon Geoffrey
van Straubenzee, Sir W.


Roberts, M.(Cardiff NW)
Viggers, Peter


Rossi, Hugh
Waddington, David


Rumbold, Mrs A. C. R.
Waller, Gary


Sainsbury, Hon Timothy
Ward, John


St. John-Stevas, Rt Hon N.
Watson, John


Shaw, Giles(Pudsey)
Wells, Bowen


Shaw, Sir Michael(Scarb')
Wells, John(Maidstone)


Shepherd, Colin(Hereford)
Wheeler, John


Sims, Roger
Wickenden, Keith


Skeet, T. H. H.
Wolfson, Mark


Smith, Tim(Beaconsfield)



Speed, Keith
Tellers for the Noes:


Speller, Tony
Mr. David Hunt and

Spicer, Jim(West Dorset)
Mr. Ian Lang.

Question accordingly negatived.

New Clause 11

REQUIREMENTS AS TO MEDICAL EVIDENCE

'After subsection (1) of section 62 of the principal Act (requirements as to medical evidence) there shall be inserted—
(lA) In the case of an offender who is suffering from psychopathic disorder or mental impairment, one of the medical practitioners whose evidence is taken into account under paragraph(a)of subsection (1) of section 60 of this Act and who is a practitioner approved for the purposes of section 28 of this Act by a local health authority as having special experience in the diagnosis or treatment of mental disorders shall consult the medical practitioner who would be in charge of the treatment of the offender and other persons who are professionally concerned with the medical treatment of patients suffering from mental disorder and who work at the hospital to which the offender would be admitted as a result of an order by the court authorising the admission to and detention of the offender in that hospital and his evidence shall include a statement of their opinions so far as they relate to the conditions set out in subsection (1A) of section 60 of this Act.'.—[Mr. Stan Thorne.]
Brought up, and read the First time.

The Deputy Speaker (Mr. Bernard Weatherill): With this we may take the following amendments:
No. 105, in clause 4, page 4, line 18, at end add —
'(4) After subsection (3) there shall be inserted the following subsection:
'(3A) Before making a recommendation under subsection (3) of this section in respect of a patient suffering from psychopathic disorder or mental impairment one of the medical practitioners concerned shall consult the medical practitioner who would be in charge of the patient's treatment and other persons who are professionally concerned with the medical treatment of patients suffering from mental disorder and who work at the hospital to which the patient would be admitted as a result of an application for admission for treatment and his recommendation shall include a statement of their opinions so far as they relate to the conditions set out in paragraphs(b)of subsections (2) of this section.'.
No. 106, in clause 10, page 7, line 28, at end add—
'(1B) Before furnishing a report under subsection (1A) of this section the responsible medical officer shall consult one or more other persons who have been professionally concerned with the patient's medical treatment.'.
Government No. 11.
No. 96, in clause 18, page 12, line 29, at end add
'(6) After subsection (3) there shall be inserted
'(3A) The Secretary of State shall make regulations concerning the consultations which shall be undertaken by the managers of a hospital in considering the arrangements to be made for the admission of the offender to that hospital in the event of such an order being made by the court. '.
Government Nos. 27 and 110.
No. 48, in clause 49, page 35, line 11, after 'professions', insert
'and of such other interests'.
Government No. 69.
No. 70, in clause 60, page 40, line 27, after 'professions', insert
'and of such other interests'.

Mr. Stan Thorne: I beg to move, That the clause be read a Second time.
Inevitably, I shall make a lengthy—but I hope that it will prove to be a relatively brief—comment on the new clause and two amendments standing in my name and, indeed, the Government's amendment which seeks to remove a clause which was inserted in Standing Committee. If it were in my power to direct where the new clause should be inserted in the Bill, I would put it immediately following clause 18 to which it directly relates.
The clause brings an element of multidisciplinary consultation into one of the medical recommendations that would be required to admit a psychopathic or mentally impaired offender to hospital for treatment. Arguments for making such an extension are similar to those applying to the amendment to clause 4 applying to admissions under section 26, and I shall come to clause 4 in a moment.
Once a person has been admitted to hospital, as a result of an admission under section 26 or section 60, it is the intention of the Mental Health Act that persons should receive treatment as patients, irrespective of the different routes by which they come to hospital. The clause makes only a small addition to the procedure involved in a section 60 admission. Clause 18(5) already requires that the medical practitioner who will be in charge of the patient's treatment in hospital, or the hospital's managers, be consulted prior to a decision by the court.
Amendment No. 105, as I said earlier, refers to clause 4. It refers to section 26(3) of the Mental Health Act. The effect of the amendment is to add a further subsection (3A). Admissions under section 26 require written recommendations by two doctors. The new subsection would require that, in the case of a patient suffering from psychopathic disorder or mental impairment, one of those doctors must consult the various clinical professions at the hospital to which the patient is likely to be admitted. He must ascertain their opinion whether, given that the patient has a disorder of a nature or degree which makes it appropriate for him to receive medical treatment in hospital, such treatment is likely to alleviate or prevent a deterioration of his condition.
It is proposed, therefore, that the decision of the doctors admitting the patient shall be informed by the opinions of the people who will actually have to carry through their decisions. In my view, that is reasonable. It is part of the case that was argued in Standing Committee, when reference was made to a multidisciplinary team approach to the treatment and care of the mentally ill. The purpose of the "likelihood to benefit from treatment" criterion is to ensure that in cases of psychopathic disorder and mental


impairment detention in hospital will be permitted only for people who are treatable. Detention for its own sake is excluded. The White Paper, Review of the Mental Health Act 1959, stated that
the weight of current medical opinion is that most psychopaths are not likely to benefit from treatment in hospital.
The White Paper added
there are some persons suffering from psychopathic disorder who can be helped by detention in hospital".
Who is to predict in which category a prospective patient belongs and how can we ensure that patients can benefit from developments in psychological and other nonmedical clinical treatments? The answer was debated in Committee, and it is a pity that the Government did not take its sensible proposals on board.They are to give those responsible for admitting the patient and prescribing treatment the chance to use such expertise in forming their opinion.
It may be argued against the amendment that the clinical team which will be treating the patient does not exist before the patient has been admitted. I see the Minister nodding in agreement with that argument but it is an extremely weak one. If an admission is under consideration, there must be one person, or more, whose skill makes an admission worth considering. Therefore, they can be consulted. That was the essence of part of the case originally put to the Government, which unhappily they wish to ignore.
I am sorry to speak at length, but I did say that I would cover several important subjects within this section. The effect of amendment No. 106 is to require the responsible medical officer to consult the rest of the multidisciplinary team who have been caring for the patient before he makes a report in which he certifies that the patient is suffering from a mental disorder other than that from which he was believed to be suffering when admitted. The significance of the amendment lies in the final phrase of the first part of clause 101, which states that the detention of the patient must cease if he is suffering from psychopathic or mental impairment and if treatment is unlikely to be effective. No one should be detained unnecessarily. Equally, no one should be deprived of treatment if it is available, even if it is treatment provided by non-medical professions. The amendment ensures that the decision is multidisciplinary. The wording of the amendment is identical to that of amendment No. 11 to clause 12 and I hope that that will encourage the Minister to accept it.
Government amendment No. 69 seeks to delete clause 60, which was agreed in Committee. Obviously, the Minister will give his reasons for wishing to remove the clause, which requires the Secretary of State to draw up regulations regarding consultation with non-medical professions about the treatment of detained patients. He is required to put the multidisciplinary clinical team work, which is the basis of modern psychiatric services, on to a proper legal footing. Members of the Standing Committee will recall continual references to "good practice". Such practice already exists and the wording is therefore unnecessary. Certain members said that it might even be harmful to make such regulations a legal requirement.
9.45 pm
Since the clause was accepted, the deficiencies in the law that it tries to repair have become much more conspicuous as a result of the events at Wexham Park hospital in Slough. Although the clause seemed highly desirable when it was proposed in Committee, it now

seems to be essential in order to avoid a recurrence of such problems. I remind hon. Members that the problem at Wexham Park hospital was that a consultant prescribed a treatment that was unacceptable not only to the patient but to the professional staff who had to administer it. The nurses ,did not agree that the prescribed treatment was necessary and later events seemed to confirm that view. That happened because doctors were abusing their powers under the Mental Health Act. Clauses 41 and 42 may go some way to resolving the problems that arise out of a patient's unwillingness to accept treatment, but it would depend on the nature of the treatment. However, the clauses do not deal with the problems that arise from a disagreement between the consultant and other professional staff. The problems at Wexham Park hospital were complex and remain unresolved, despite an inquiry by East Berkshire health authority.
However, it is worth quoting one conclusion of the inquiry to illustrate the deficiencies in the law that I have mentioned:
A true understanding of the Consultant's role is essential to any multi-disciplinary…team. It is the consultant who is ultimately charged with responsibility for the care and treatment of patients in hospital. This does not mean that he is entitled to be autocratic or unreasonable or to disregard the opinions of other professionals. Indeed, it confers upon him an obligation to consider those opinions with the greatest care, to be responsive and to keep himself yell informed. Nor does it mean that the Consultant is always right. It should, however, entail a realisation by other professions that the deliberate obstruction of or countermanding of the consultant's proposals for treatment is to arrogate to themselves the responsibility for patient care of a kind which they do not have in law or in practice.
If that is a fair statement of the law, as it purports to be, it reveals some deficiencies. Although on occasion the non-medical profess ions may, on the basis of their special expertise, judge that the doctor is mistaken and is proposing inappropr aate treatment, they have no right in law to question his judgment or to intervene to protect the patient. It means that patients have no right in law to a multidisciplinary approach to their treatment. If a doctor wishes to ignore the views and skills of the non-medical professions, he may not be following good practice, but he is perfectly entitled to do so. The ethical obligation of each professional who deals with a patient to that patient and the duty of care owed by each professional to the patient is subordinate to the doctor's judgment. There is no explicit obligation on a doctor to temper his decision because he does not have a monopoly of wisdom and because other profess ions may have skills, knowledge and competences that he does not possess.
Evidence given at disaster inquiries shows that some doctors believe that they are entitled to be autocratic and to disregard other opinions. An extension of the law is definitely required. The appropriate way to reconcile the clinical contributions and personal obligations to the patient with the decision-making responsibilities of the medical profession is to place a statutory obligation on the medical profession to consult the other professions. If such consultations reveal profound disagreements about the treatment of a particular patient, such as occurred at Normansfield, Wexham Park and other places, the matter should be referred to the Mental Health Act Commission for a second opinion.
I hope that the Secretary of State will specify in the regulations under clause 60—about which I hope that he will have second thoughts and so withdraw amendment


No. 69—a rational procedure for handling differences in judgment between the professions. I hope that the Government will make a positive response.

Mr. Pitt: I support new clause 11 and I shall speak about amendments Nos 48, 70, 69 and 110. There appears to be some muddled thinking. Clause 60 was agreed in Committee. Unfortunately, I was not a member of the Committee, but from my reading of the proceedings it seems that clause 60 is necessary. There is a strong argument for consultation with a multidisciplinary team. I am puzzled and confused about the Government choosing to withdraw the clause when there was such strong support for it in Committee.
My amendment No. 70 amends clause 60, reinforces it and provides a statutory duty to represent patients' interests, through community health councils, for example. Instead of making a multidisciplinary team a statutory requirement, amendment No. 110 emasculates the clause. That is why I can support neither amendment No. 69 nor amendment No. 110. I ask the Minister to reconsider his position. Clause 60 is vital to the Bill. The Minister should seriously consider amendments Nos 48 and 70 because they make multidisciplinary representation stronger and give the Bill more bite.

Mr. Terry Davis: I support new clause 11 and amendment Nos. 105 and 106, but I shall address most of my remarks to the other amendments because my hon. Friend the Member for Preston, South (Mr. Thorne) has explained the purpose of his amendments and will have secured the support of the House. Amendment No. 11 appears to be a good amendment. It provides for consultation with other people, who have been professionally concerned with the patient, before detention is renewed. That appears to be most desirable and we therefore welcome amendment No. 11.
I turn now to Government amendment No. 110. I was a little surprised by the remarks of the hon. Member for Croydon, North-West (Mr. Pitt), because amendment No. 110 would broaden the amount of consultation that would take place in connection with a code of practice. My understanding is that at the moment the Bill would ensure that there is consultation with the organisations that are professionally concerned about the code of practice before it is brought into being. The Government are now suggesting that there should be wider consultation -than simply with the professions and such consultation would include organisations which purport to represent, and frequently do represent, the interests of patients.

Mr. Pitt: I am sorry if I did not make myself clear during my exposition at the beginning of my remarks. As I see it, by removing the relevant words
as he may recognise as being representative of members of such parts of the medical profession and of members of such other professions
subsection (3) is emasculated. Subsection (3) exists perfectly adequately by itself, as far as it goes. Amendment No. 48 seeks to reinforce that subsection of the clause. That is why I cannot accept amendment No. 110.

Mr. Davis: I await the Minister's exposition because there seems to be little between the hon. Gentleman and the Minister. I believe the Minister is trying to broaden

consultation about the code of practice to ensure that consultation would take place with other organisations, and not only with organisations that represent professions. Indeed, the move seems to be on all fours with similar moves that were made in Committee with regard to clauses 41 and 42, where we deleted the references to the professions to ensure that there would be wider consultation about treatment. Subject to what the Minister says, the Opposition will welcome amendment No. 110.
We give an unreserved welcome to amendment No. 27, not least because its wording is indentical to an amendment that the Opposition tabled in the Special Standing Committee. Amendment No. 27 requires consultation by the second doctor with two other people who have been professionally concerned with the patient. This consultation will take place with regard to treatment under clause 41. The Opposition put forward an identical amendment in Committee but we were told by the Under-Secretary of State that the wording was not right. Now we see the identical wording. I am totally baffled but welcome with pleasure—

Mr. Geoffrey Finsberg: I am baffled.

Mr. Davis: The Under-Secretary of State is very honest when he says that he is baffled. We had the impression at the time that he was scratching around for reasons to oppose it and to refuse to accept it. We are delighted that the wording is all right, especially since we took the wording from the Government's provisions in another clause.
I regret that I am unable to give that unqualified welcome to amendment No. 69. Indeed, I am not able to welcome it at all.

Mr. Pitt: It is the same as amendment No. 110.

Mr. Davis: I am having some difficulty with amendment No. 110. I shall listen to what the Minister says.
I have no difficulty whatsoever with amendment No. 69. I am clear about its meaning. It deletes clause 60 which was added, perhaps inadvertently, in Committee. Clause 60 was added because there was no vote registered against it although there were some subsequent manoeuvres, but the clause was eventually allowed to stand. It is a serious clause because it provides for the Secretary of State to make regulations about the consultations that will take place between the doctor and other professions about the treatment of a detained patient.
It is common ground between both sides of the House—it was common ground in Committee—that there should be consultations between the responsible medical officer and other people who are professionally concerned with the treatment of the detained patient.
That seems to be agreed. The point of disagreement appears to be on whether the Minister should make regulations about that consultation. We feel that it is right for regulations to be made. We have reservations about the way in which some psychiatrists—I emphasise that it is only some—engage in consultation with other professions. There have been examples of psychiatrists refusing to consult other members of other professions. There have been specific examples at hospitals in the West Midlands. It is disturbing when a psychiatrist refuses —

It being Ten o'clock, the debate stood adjourned.

BUSINESS OF THE HOUSE

Ordered,

That, at this day's sitting, the Mental Health (Amendment) Bill[Lords]and the Insurance Companies Bill[Lords]may be proceeded with, though opposed, until any hour.—[Mr. Boscawen. ]

Mental Health (Amendment) Bill [Lords]

Question again proposed, That the clause be read a
Second time.

Mr. Terry Davis: I was explaining that it is disturbing when a psychiatrist refuses to discuss a patient with an approved social worker who has been appointed by a local social services authority specifically to work at the hospital concerned. There have been such cases in the West Midlands. I consider that regulations are necessary. I appreciate that the Minister will say that we can rely on good practice and that good and responsible psychiatrists will consult. Unfortunately, I am not persuaded that all psychiatrists follow what is good practice. It is the Opposition's opinion that regulations are necessary to ensure that consultation takes place.
Amendment No. 96, which I tabled, has been supported by several of my hon. Friends. Its wording is identical to that of an amendment which was tabled in Committee on which there was a tied vote. It is an extremely important amendment and I hope that the Minister will accept it. It relates to instances where a court makes an order for an offender to be remitted to hospital instead of prison. This is an issue that we discussed when considering new clause 3. The Minister has gone a long way towards meeting our suggestions about the procedure to be followed in finding a suitable hospital for someone to be admitted to from a court. There is, however, one gap. There should be consultations with the staff at the hospital. This is of great concern to the trade unions which represent hospital staff.
There is a feeling that there has been a tendency in the past for courts and psychiatrists to decide whether someone should be admitted to a particular hospital without any reference to the views of the other professions in the hospital. Often offenders are sent to a secure unit or a secure hospital. Security is not limited to locks and keys or bars and windows. It consists also of staffing arrangements in hospitals. It is necessary for there to be a higher ratio of staff to patients if the necessary security is to be achieved. There is a strong feeling among hospital staff that their views are not being taken into account in determining staffing arrangements. As I said in Committee, there was one notorious case which concerned the transfer of a man called John Ashingdane from a special hospital to an ordinary hospital. The transfer became a cause celebre because the staff at the ordinary hospital would not co-operate with the transfer. The reason behind their refusal lay, as they saw it, in an unwillingness to discuss with them the staffing arrangements that should apply. They may have been right or they may have been wrong, and I am not expressing an opinion. I am anxious to ensure that there is consultation with the nurses and staff at a hospital before someone is committed to it under a court order.
I do not believe that the consultation that I am urging will impose an unnecessary obligation on psychiatrists, or an obligation which will he resented by psychiatrists who believe in consulting the staff and in a team approach.

These are psychiatrists who believe that other members of the team should be consulted about the arrangements to apply in a hospital.

Mr. Kenneth Clarke: In Committee, the hon. Member for Preston, South (Mr. Thorne), who moved the new clause, pressed the need for multidisciplinary cooperation and consultation in the treatment of patients in mental hospitals. I am glad to say that he made considerable progress in pushing that cause in Committee. He met no resistance front either side of the Committee. Everyone in the Committee agreed—and the opinion is shared by all those who are following the best modern practice in the c are of the mentally ill outside—that it is good practice for the professional team caring for a patient to work together in close consultation and co-operation.
The result was that, by the time the Bill emerged from Committee, the Government had already written in more provisions requiring multidisciplinary co-operation and consultation. The only difference that emerged between the Government and some members of the Committee, as the debate continued, was the extent to which good practice and multidisciplinary working could be written into the law to advantage. That remains the difference between us on some of the amendments that have been selected tonight, but it is the only difference. There is no denial that it is good to have the closest co-operation by all the professions involved in dealing with the patient in a mental hospital.
I said that we all agreed in principle. I can reinforce that by accepting some, but by no means all, of the further suggestions that have been made in the debate. Unfortunately, amendment No. 105 is one of those that I cannot recommend the House to accept. It deals not with multidisciplinary working on the part of the treatment team inside a hospital but with the situation that arises under section 26 of the principal Act when an application is being made for admission to a hospital for treatment. If passed, it would require the doctors making the two medical recommendations required to support an application for admission for treatment to consult those who would treat the patient, if he were admitted, about his treatment. I believe that practical problems would arise if we were to put the requirement for multidisciplinary consultation with the people likely to be involved in the treatment in hospital on the people considering supporting an application for admission for treatment.
The hon. Member for Preston, South anticipated one of my arguments. He realised that I would say that, when the admission of a patient to hospital was considered, it would be difficult to identify the medical practitioner who would be in charge of the.. patient if he were admitted. The hon. Gentleman said that individual skill may be one of the reasons for the application being made but that someone may not have an individual doctor in mind when considering applying for the admission for treatment of a patient. The doctors supporting the application identify symptoms of mental illness in an individual that satisfy the requirements under the Act. They realise that he needs care and treatment and apply for his admission to a hospital wherein there may be a number of people with the requisite skills and the right regime from which they believe that the patient may benefit. To try to identify the individual medical practitioner at that stage would be difficult.
It would be more difficult to speculate in every case about which other professional staff in the hospital might


be involved in the patient's care. The difficulties of making sure in a particular case that the doctors have complied with the requirements suggested in amendment No. 106 would lead to a risk of delay. There are a few section 26 applications in which two doctors are required to be of the opinion that they should support the application. Suffering would be caused to the patient if there were excessive impositions, causing delay in admission to the hospital.
The root of amendment No. 105 is a confusion between the right procedures before someone is admitted to hospital, on the one hand, and the way in which he should be treated once inside the hospital, on the other. Admission procedure must be on the application of the social worker or the nearest relative, with two medical recommendations to support the application. Once the application is accepted by the hospital managers, and the patient is admitted, he is the responsibility of the hospital management and it is for the team of professionals in the hospital to draw up a programme of care and treatment.
The responsible medical officer will have the care of his patient. If he follows good practice he will consult the other professionals, and they may come to the view either that the admission was a mistake or, now that they see the patient for a little longer, he should not be detained. If they come to that multi-disciplinary decision, there is nothing to stop them discharging the patient. The doctor and those with whom he works are not obliged to detain a patient if they decide there is no cause to do so—for instance, because he will not benefit from the treatment.
Amendment No. 105 is not acceptable. Section 26 admissions are not an area to which we can extend a statutory requirement for multi-disciplinary consultation.
I accept amendment No. 106, although there is a printing error: "(1A)" should be "(1)". I am grateful to the hon. Member for Preston, South for spotting in the Bill another occasion when a statutory report is called for and a statutory requirement for multi-disciplinary consultation is appropriate. The amendment affects clause 10 and deals with the occasions when a patient is being reclassified.
Government amendment No. 11 meets a commitment given in Committee to the hon. Member for Preston, South. It would require consultation about one of the most important procedures that affect a detained patient—when the point comes to seek authority to renew detention. It provides that the responsible medical officer must, before making a report that detention should be renewed,
consult one or more other persons who have been professionally concerned with the patient's medical treatment.
Government amendment No. 27 also honours a commitment that my hon. Friend the Under-Secretary gave during a long debate on consent to treatment on the last day in Committee. It puts into clause 41 the multidisciplinary aspect requiring an independent psychiatrist to consult a nurse or other health professional who has been caring for the patient. The hon. Member for Birmingham, Stechford (Mr. Davis) anticipated that we would be moving the amendment in an earlier debate. Having asked him to withdraw his amendment in Committee and having given an undertaking, the Government have tabled an amendment that is word for word the same, but it has been put in another place in the Bill.

Mr. Terry Davis: I had noted that it was to be in a different place. Nevertheless, I am delighted.

Mr. Clarke: The new clause and amendments deal with multi-disciplinary consultation when offender patients are being admitted to hospital. New clause 11 and amendment No. 96 bear on section 60 an 65 orders being made or considered by courts that have offenders before them. The matter was debated in Committee and exactly the same point was raised in both cases.
New clause 11 covers more ground than amendment No. 96. In part, one of the provisions of new clause 11 is unnecessary as it is already provided for by clause 18(5). That provides that the medical practitioner who will be in charge of the patient's treatment, or someone representing the hospital managers, should be one of the two medical witnesses giving evidence to a court when a hospital order is being considered. The evidence on which the court acts must come from someone who is prepared to say that he will be responsible for the patient, or from someone acting on behalf of the hospital managers. The Government cannot advise the House to accept either new clause 11 or amendment No. 96. Both require that consultation with other professionals in the hospital should be embarked upon as a statutory requirement before evidence is given by the medical witnesses and the court makes its decision.
10.15 pm
The hon. Member for Stechford said that that requirement supported his previous remarks about new clause 3. I believe that it goes in the opposite direction. When we debated new clause 3, the House agreed that it was desirable that when someone who appeared before a court needed treatment rather than punishment, help should be given to the court to ensure that there was the minimum difficulty in placing him in the right hospital. If a statutory requirement for multidisciplinary consultation is brought into such cases before the medical evidence is given and the court reaches its decision, it will raise a further statutory hurdle in the way of placing offender patients in hospitals. It might even prevent a patient from being accepted. In most cases, the doctors who give written evidence to the courts, or who attend the courts to support a section 65 order, will have consulted other professionals in the hospital. I am prepared to concede that in most cases that would be good practice. Nevertheless, a statutory provision such as that provided in the amendments would so load matters that it is possible that, even if the hospital managers wished on the advice of the consultant to admit a patient from the court, other groups of staff might be encouraged to object, even if only in a minority of cases, which would be outside the best interests of the patient, and would conflict with medical evidence.
We should not lay a statutory provision upon doctors that might encourage people to deter them from accepting offenders into hospitals when they think that they might benefit from the treatment. It might also be an attempt to influence the powers of the court in an undesirable manner. If, on medical evidence, a court decides that an order should be made, the House should not write in statutory provisions that might be a deterrent.
I turn to Government amendment No. 110, which sits alongside amendment No. 48 tabled by the hon. Member for Croydon, North-West (Mr. Pitt). I assure the hon. Gentleman that there was no collusion between myself and the hon. Member for Stechford in our response to his


contribution. The hon. Member for Stechford has studied the Bill and, I am glad to say, has reached the conclusion that amendment No. 110 amounts to the same thing as amendment No. 48. I assure the hon. Member for Croyden, North-West that that was the intention. I am disposed to accept the principle of amendment No. 48, and am grateful to the hon. Gentleman for tabling it.
I and those who drafted the amendments believe that amendment No. 110 is a better and simpler way of achieving the same object.
Amendment No. 110 seeks to delete all the words on page 35, line 9, from the word "as" to the end of line 11. The subsection would then read:
Before preparing the code or making any alteration in it the Secretary of State shall consult such bodies as appear to him to be concerned.
The practical difference is that it would no longer be confined to the medical profession and members of other professions. The Secretary of State would then be able to consult voluntary bodies and other groups, many of which have valid interests and a contribution to make but are not professionally qualified. That was the only purpose of amendment No. 110, and it would achieve the same effect as amendment No. 48.
I accept that this still leaves the Secretary of State some discretion. He must decide that such organisations
appear to him to be concerned".
However, those words would still survive even if amendment No. 48 were accepted. It would still leave the Secretary of State some discretion. Having read what the hon. Member for Croydon, North-West proposed, the Government decided that it would be neater to widen the scope of the clause. I believe that we have achieved that object in amendment No. 110.
Amendment No. 69 creates controversy, because the Government are proposing to remove clause 60 from the Bill. As the hon. Member for Stechford said, we are not undertaking a complete volte-face compared with our position in Committee. The hon. Member for Croydon, North-West did not serve on the Committee, but those who did will recall that a procedural error led to clause 60 being added. No Conservative Member voted for it, although, to be fair, no one voted against it.
That procedural error now enables us to debate the merits of clause 60. The issue between us, as the hon. Member for Stechford said, is not whether there should be multi-disciplinary consultation, which has been written into the Bill in several more places, but whether it would be helpful to make regulations on multi-disciplinary consultation, particularly along the tight lines prescribed by clause 60. The regulations proposed in that clause prescribe procedures for the conduct of consultations and require written records of consultations to be kept in a particular form.

Mr. Ennals: As inadvertently—we believe successfully—this clause was written into the Bill, has the Minister received any representations from professional bodies to the effect that it is an inappropriate clause? Is he now responding to those representations, or is he merely correcting a slight procedural error?

Mr. Clarke: I cannot think of any representations from outside bodies. I am merely setting out the argument which I believe should have prevailed in Committee but which did not because of an error. I hope that it will now commend itself to the House as a whole.
I shall not emphasise how much we have already written multi-disciplinary consultation into the 13ill. We are also establishing the Mental Health Act Commission as a multi-disciplinary body. I remind the House that we are proposing a code of practice to be drawn up by the commission for the guidance of medical practitioners and members of other professions about medical treatment and admission procedures. The code will give guidance on consultation and teamwork. A code is flexible and can be altered in the light of experience. A code can allow for discretion in special local circumstances. If, as we all expect, the Mental Health Act Commission agrees with hon. Members that multi-disciplinary working is a good thing, that can b reflected in the code, which can be modified and adjusted to meet changing circumstances in practice in the way that I have described
I suggest that the code of practice is a much better way forward than clause 60 because it will be about relationships and attitudes which are essential for good multi-disciplinary working. Although as a lawyer I believe that the law can do many things, I do not believe that legislating for good relationships and the right attitudes necessarily achieves what one wants. The law cannot make professionals listen to each other and co-operate
The hon. Member for Lewisham, West (Mr. Price) will address us on the subject of Wexham Park hospital. The complete breakdown of relationships between medical and nursing teams there underlines the point that legislation cannot create good practice. If professionals will not listen to each other and work together, no amount of lawmaking or statutory requirements will make them do so successfully. Clause 60 will be even less likely to be successful than other attempts that have been made in the past.
Under the clause the Secretary of State will be required to make regulations even if, upon consultation, professional bodies said that they would prefer not to have them. It does not give the multi-disciplinary team any discretion to decide their own form of consultation and joint decision-making. While the regulations remain in each hospital they will have to do as the Secretary of Stale says. They would even have to write out their opinions in the form prescribed by the Secretary of State. Such a legislative straitjacket will not create the right relation ships between professionals in the team to produce the multi-disciplinary working that we all want. I am confirmed in that view having been reminded, following the intervention of the right hon. Member for Norwich, North (Mr. Ennals), that the Royal College of Psychiatrists protested about clause 60.
I have covered each of the individual amendments with some care. I remind the House that the Government are accepting some and moving others which honour undertakings given in Committee. That shows the Government's commitment to the good practice of multidisciplinary working in appropriate cases. I hope that the House will accept the practical. limitations upon that so far as this statute is concerned.

Mr. Davis: We should not allow one of the Minister's statements to pass unchallenged. I do not accept that there is any inconsistency between amendment No. 96 and new, clause 3.
New clause 3, which I welcome, provides that if a court is considering an order to send someone from the court to a hospital, the court can ask the regional health authority


to furnish the court with the information that it needs about which hospital or hospitals could be appropriate. The regional health authority must comply with that request. That is a great step forward which we should welcome this afternoon.
However, it will still be necessary under the Bill and the Mental Health Act 1959 for either the responsible medical officer at the hospital or a representative of the managers of the hospital to come to the court in order to satisfy it that proper arrangements have been made at the hospital for a patient's admission. That will still apply. Amendment No. 96 seeks to ensure that, before either the responsible medical officer or a representative of the hospital managers goes to the court in order to satisfy it about those arrangements, there shall be consultations with the other staff at the hospital. That is not interfering with the court's power to make an order; it is simply ensuring that there is consultation between the psychiatrist or the hospital managers with the staff. The amendment specifies hospital managers. However, these matters are involved and everybody would be concerned—the psychiatrist, perhaps the administrator and the representatives of the nursing profession in particular. That is very important.
In Committee I described at length the proceedings in a court case involving a young woman named Julie. I read extracts from a transcript of the court hearings to the Committee. The transcript had been sent to me by the solicitors representing Julie at the express request of the judge, who was exasperated by the behaviour of a series of psychiatrists who had explained why Julie could not be admitted to their hospitals. At least one of the psychiatrists said that he would not want to admit her to his hospital because he was not responsible and because it involved the hospital staff, who he thought would object.
10.30 pm
The psychiatrist had not—if I understand the transcript correctly—taken the trouble to consult the staff but had stated in court that he was not the boss of the hospital any longer and that it depended on the staff. He used the staff as an excuse for not admitting her. There is a danger that psychiatrists will take shelter behind such excuses. I emphasise that, despite new clause 3, it will still be necessary for the court to be satisfied about the arrangements at hospitals. There will be a desire to interview someone in court or to have written evidence from someone at the hospital to say that proper arrangements can be made for the patient at the hospital. We ask that not only should the responsible medical officer be consulted by the hospital managers and, no doubt, by the regional health authority, but that the other professional staff at the hospital should be consulted before a court order is made.
There is no conflict between amendment No. 96 and new clause 3. It will still be necessary—even if we do not pass amendment No. 96—for the courts to receive evidence from psychiatrists or hospital managers. We want to ensure that other professions are also involved. In the debate on new clause 3 I think that it was the Minister for Health who said that members of professions could not be compelled to treat a patient against their will—that is that they could not be compelled against their will to treat a patient.
It is important to consult the members of those other professions about the arrangements that are to made for patients who are often difficult. Frequently those difficulties will be magnified in the minds of the staff unless they are properly consulted beforehand. It is essential to ensure that everyone is consulted and involved before a decision is taken about a patient being admitted to a hospital. That is all we ask. We are not trying to interfere with the court's power, but it is important that the court should have evidence not only from the psychiatrist and from hospital managers but on behalf of the other staff in the hospital. For that reason, we shall press amendment No. 96 to a Division unless I have succeeded in persuading the Minister.

Mr. Pitt: By leave of the House, I intend to prove that occasionally hon. Members are swayed by debate rather than by preconceived ideas. I am persuaded by the Minister's eloquence in relation to amendment No. 110 and therefore, I give notice that I shall beg to ask leave to withdraw the amendment.

Mr. Stan Thorne: The Minister's reply was somewhat like the curate's egg. The acceptance of amendment No. 106 is welcome, but I have not been so fortunate in relation to amendment No. 105. I was concerned by the Minister's reference to amendment No. 69 which, he says, arises from a procedural error in Committee. That implies that the Chairman of the Committee was in some way at fault, since he controls the procedure of the Committee. However, it would be more honest of the Minister to say that he and his colleagues were asleep when the Chairman put the provision to the Committee for its agreement.
I must mention the Minister's reference to law-making in response to my arguments for professional consultation. He suggests—I am almost quoting his words—that lawmaking will not improve consultations between those involved in the hospitals in the circumstances that I have described. Will the Minister convey that theory to the Secretary of State for Employment, because if he is arguing that law-making will not enable people to consult at work and protect, in this case the interests of patients, how does he expect law-making by the Secretary of State for Employment to improve our industrial relations? Perhaps the Minister will have a word with the right hon. Gentleman, if he is not cycling somewhere at the time, to make that point.
I feel that it is necessary to force new clause 11 to a Division, and I hope that hon. Members of all the opposition parties will find themselves able to support it.

Question put, That the clause be read a Second time:—
The House divided: Ayes 82, Noes 138.

Divison No. 305]
[10.40 pm


AYES

Ashton, Joe
Davis, Terry(B'ham, Stechf'd)


Atkinson, N.(H'gey,)
Dean, Joseph(Leeds West)


Beith, A. J.
Dixon, Donald


Benn, Rt Hon Tony
Dormand, Jack


Bennett, Andrew(St'kp't N)
Douglas, Dick


Booth, Rt Hon Albert
Duffy, A. E. P.


Campbell-Savours, Dale
Dunnett, Jack


Cocks, Rt Hon M.(B'stol S)
Eastham, Ken


Cowans, Harry
Ellis, R.(NE D'bysh're)


Craigen, J. M.(G'gow, M'hill)
Ennals, Rt Hon David


Cryer, Bob
Evans, loan(Aberdare)


Cunningham, Dr J.(W'h'n)
Evans, John(Newton)


Dalyell, Tam
Forrester, John


Davidson, Arthur
Foster, Derek


Davis, Clinton(Hackney C)
Foulkes, George






Foster, Derek
Penhaligon, David


Foulkes, George
Pitt, William Henry


Freeson, Rt Hon Reginald
Powell, Raymond(Ogmore)


Grimond, Rt Hon J.
Price, C.(Lewisham W)


Hamilton, W. W.(C'tral Fife)
Ross, Ernest(Dundee West)


Hardy, Peter
Sever, John


Harrison, Rt Hon Walter
Skinner, Dennis


Homewood, William
Spearing, Nigel


Hooley, Frank
Steel, Rt Hon David


Howells, Geraint
Stoddart, David


Hoyle, Douglas
Stott, Roger


Hughes, Robert(Aberdeen N)
Thomas, Dafydd(Merioneth)


Johnston, Russell(Inverness)
Thomas, Dr R.(Carmarthen)


Jones, Barry(East Flint)
Thorne, Stan(Preston South)


Leighton, Ronald
Wainwright, E.(Dearne V)


Litherland, Robert
Watkins, David


Lofthouse, Geoffrey
Weetch, Ken


McCartney, Hugh
Welsh, Michael


McKay, Allen(Penistone)
White, Frank R.


McWilliam, John
Whitehead, Phillip


Marshall, D(G'gow S'ton)
Wigley, Dafydd


Marshall, Dr Edmund(Goole)
Winnick, David


Maynard, Miss Joan
Woolmer, Kenneth


Milian, Rt Hon Bruce
Wright, Sheila


Morris, Rt Hon A.(W'shawe)
Young, David(Bolton E)


Morris, Rt Hon C.(O'shaw)



Morton, George
Tellers for the Ayes:


Palmer, Arthur
Mr. James Hamilton and


Pavitt, Laurie
Mr. Frank Haynes.



NOES


Alexander, Richard
Chalker, Mrs. Lynda


Alison, Rt Hon Michael
Chapman, Sdney


Ancram, Michael
Clark, Hon A.(Plym'th, S'n)


Aspinwall, Jack
Clarke, Kenneth(Rushcliffe)


Atkinson, David(B'm'th,E)
Cockeram, Eric


Baker, Nicholas(N Dorset)
Cope, John

Bendall, Vivian
Cormack, Patrick


Benyon, Thomas(A'don)
Costain, Sir Albert


Berry, Hon Anthony
Cranborne, Viscount


Best, Keith
Crouch, David


Biggs-Davison, Sir John
Dickens, Geoffrey


Blackburn, John
Dover, Denshore


Boscawen, Hon Robert
Dunn, Robert(Dartford)


Bottomley, Peter(W'wich W)
Fairgrieve, Sir Russell


Bright, Graham
Faith, Mrs Sheila


Brinton, Tim
Finsberg, Geoffrey


Brooke, Hon Peter
Fookes, Miss Janet


Brown, Michael(Brigg &amp; Sc'n)
Fowler, Rt Hon Norman


Bruce-Gardyne, John
Gardiner, George(Reigate)


Budgen, Nick
Goodhart, Sir Philip


Bulmer, Esmond
Gppdhew, Sir Victor


Carlisle, John(Luton West)
Goodlad, Alastair





Gow, Ian
Pattie, Geoffrey


Greenway, Harry
Percival, Sir Ian


Griffiths, Peter Portsm'th N)
Price, Sir David(Eastleigh)


Grist, Ian
Proctor, K. Harvey


Grylls, Michael
Raison, Rt Hon Timothy


Hamilton, Hon A.
Renton, Tim

Hampson, Dr Keith
Rhys Williams, Sir Brandon


Heddle, John
Ridsdale, Sir Julian


Henderson, Barry
Rippon, Rt Hon Geoffrey


Hill, James
Roberts, M.(Cardiff NW)


Hooson, Tom
Rossi, Hugh


Hunt, David(Wirral)
Rumbold, Mrs A. C. R.


Jenkin, Rt Hon Petrick
Sainsbury, Hon Timothy


Jessel, Toby
St. John-Stevas, Rt Hon N.


Jopling, Rt Hon Michael
Shaw, Giles(Pudsey)


Kaberry, Sir Donald
Shaw, Sir Michael(Scarb')


Knight, Mrs Jill
Shepherd, Colin(Hereford)


Lawrence, Ivan
Sims, Roger


Lester, Jim(Beeston)
Skeet, T. H. H.


Lloyd, Peter(Fareham)
Smith, Tim(Beaconsfield)


Loveridge, John
Speed, Keith


Luce, Richard
Speller, Tony


Lyell, Nicholas
Spicer, Jim(West Dorset)


McCrindle, Robert
Spicer, Michael(S Worcs)


Macfarlane, Neil
Stanbrook, Ivor


MacKay, John(Argyll)
Stevens, Martin


Macmillan, Rt Hon M.
Stradling Thomas, J.


McNair-Wilson, M.(N'bury)
Taylor, Teddy(S'end E)


Madel, David
Temple-Morris, Peter


Major, John
Thomas, Rt Hon Peter


Marlow, Antony
Thompson, Donald


Mather, Carol
Thorne, Neil(IIford South)


Maude, Rt Hon Sir Angus
Thornton, Malcolm


Maxwell-Hyslop, Robin
Townend, John(Bridlington)


Mayhew, Patrick
Trippier, David


Mellor, David
van Straubenzee, Sir W.


Meyer, Sir Anthony
Viggers, Peter


Mills, lain(Meriden)
Waddington, David


Moate, Roger
Waller, Gary


Morrison, Hon C.(Devizes)
Watson, John


Murphy, Christopher
Wells, Bowen


Neale, Gerrard
Wells, John(Maidstone)


Needham, Richard
Wheeler, John


Neubert, Michael
Wickenden, Keith


Newton, Tony
Wolfson, Mark


Osborn, John



Page, John(Harrow, West)
Tellers for the Noes:


Page, Richard(SW Herts)
Mr. Ian Lang and


Parris, Matthew
Mr. Tristan Garel-Jones.

Question accordingly negatived

New Clause 12

CONSCIENCE CLAUSE FOR FORCIBLE RESTRAINT OF PATIENTS

'( ) No member of those other professions referred to in section 49 (1)(b)of this Act shall be under any duty whether by contract, or by any statutory or other legal requirement to engage in the forcible restraint of patients detained under the principal Act or this Act other than in accordance with their own professional judgment . ' .—[Mr. Christopher Price.]
Brought up, and read the First time.

Mr. Christopher Price: I beg to move, That the clause be read a Second time.
We have had two mini-debates on the Wexham Park affair, but the new clause goes to the centre of the affair and perhaps it would be fair to the House—it is nice to see it so crowded and attentive at this early hour—to sketch out what has happened. The clause would give to nurses the same professional rights as are accorded to all the other professions that operate in the Health Service.
Wexham Park was unknown to the House until a few months ago. It is a psychiatric hospital just outside Slough, in what used to be Bucks and is now Berks. It came into public prominence because of what happened between June and September this year. There is much to be said for the claim that it goes back beyond June, but I shall come to that later. It came to particular attention between June and September because of an incident that occurred during that period.
I shall try to be fair in sketching out what happened and no doubt the hon. Member for Beaconsfield (Mr. Smith), who is the local Member, will interrupt me if I am not being fair. A woman was admitted to the hospital and the doctors extended her section 26 admission procedure. The nurses involved felt that that was unnecessary. On a particular date the doctors instructed the senior nurse and some of his assistants to hold the woman down so that she could be compulsorily injected with a drug, on the ground that she needed it, in the doctors' professional opinion. The nurses said that in their professional opinion she did not need the drug and that, as she was shortly to come before a mental health review tribunal, that tribunal was the proper body to decide whether she should receive the drug.
However, the doctors persisted in their instruction. The nurses persisted in their refusal. When the case came to the mental health review tribunal on 14 September of this year, the tribunal decided that, whatever the merits of her original sectioning, on 14 September the woman was not properly sectioned, and it declared her sane and released her from hospital.
One of the reasons—and only one—given by the doctors for the woman needing to be injected with a heavy tranquilliser was that she might leave her husband and not return to her marital home. That was only one of the many other reasons that were given.
As a result, the nursing press in this country—theNursing Mirrorand theNursing Times—has printed news about little but Wexham Park. Whether one likes it or not, it has become a test case of multi-disciplinary procedures, which are at the heart of this Bill and, as members of the Standing Committee will agree, were at the heart of almost every debate which we conducted in that Committee. What is the real nature of multi-disciplinary procedures?

Are they just a sham, a charade, which one carries out, up to the point at which the doctor has the final word and says to the nurse, "Hold down that patient while I inject this dose"? Or are multi-disciplinary procedures a reality in which all the disciplines responsible for the patient at that time come together and agree in some way or other about the proper treatment? The crunch came at Wexham Park because that is where the first incident took place since the introduction of the Bill—there have been many incidents over the past decade—to illustrate the reality of what this House has to decide about multi-disciplinary procedures.
Some nurses in this country are proud to be nurses. They consider that their profession, which goes back to Florence Nightingale, is quite as noble and glorious as the medical profession. They believe—in my view, quite properly—that the job of the nurse is to be the patient's advocate. They have to keep faith with the patient in a peculiar way, and they break their professional faith if they fail to keep that faith.
Nurses take their skills as seriously as do members of the medical profession. They believe that those skills involve obtaining the voluntary co-operation of the patient in his treatment, however long that might take and however difficult it might be. They believe that to resort to forcible restraint and injection means a failure of their skills. Nursing is a noble profession and hon. Members should support it as much as they support the medical profession. What happened at Wexham Park goes against the multi-disciplinary approach that we have discussed. I should be sad if the Minister simply asserted medical primacy and said at the Dispatch Box "At the end of the day, doctors are right and nurses are wrong," but he must do that if he is to defend the attitude of the management at Wexham Park.
What has happened at Wexham Park? For the first time in recent months, although not for the first time ever, nurses have said that an instruction given by a doctor is something that they believe is unprofessional. They do not say that the doctor must not carry out the practice. He has his professional code of practice and can do so, but if he instructs six nurses to sit on a female patient while he injects the drug, they will say that they do not wish to take part in the operation. If the doctor wishes six other doctors to sit on the patient, he is at liberty to ask them to do so, but the nurses believe that they have a right, as professionals, to withhold their labour from an operation that they consider unprofessional.
It has been said that Paul Walsh at Wexham Park was a way-out nurse. Marian Morgan, the president of the Royal College of Nursing, said recently:
I am not yet privy to all the information, but if, on the basis of what is public knowledge, this young man is to be disciplined for standing by his professional and humanitarian principles, it will set back the course of nursing.
We have in front of us a conscience clause—new clause 12—that is central to the entire debate on the Bill.
I remind the House that in 1967 it passed, easily and with minimal debate, a conscience clause for nurses during discussion on the Abortion Act. It recognised that some nurses felt so strongly about abortion that they should have the freedom, not to interfere with abortion operations, but to stand back and to say "I do not approve of that operation and I wish to have the legal right not to participate in it."
I am asking for a similar conscience clause for nurses so that they can refuse to participate in any violence used by a doctor to inject heavy tranquillisers of the kind


frequently used in our psychiatric hospitals. The doctors should be free to make such injections if they can find the helpers, but a nurse should be able to say "My professional ethic is that such an operation must take place with the voluntary co-operation of the patient."
11 pm
I shall make a comparison. We are talking about mental health. Doctors and nurses working with drugs agree that a drug addict will get better only with his co-operation. We have swept from the law power to detain drug addicts compulsorily. Parliament has said that the only way to salvation for a drug addict is by his own efforts. In mental health, we have decided differently. We still say that some form of restraint is necessary. I agree that some restraint is necessary when a florid emergency occurs in mental health, but I ask the House to consider that we should give a right of withdrawal to mental health nurses involved in violence similar to that which we gave to nurses involved in abortion.
The management at Wexham Park has already sacked two nurses—although appeals have to be heard—and it has suspended a further 16. It is extraordinary. When there is a breakdown in relationships, one expects the buck to stop at the top. One would expect the administrator to take the responsibility for a total breakdown in management of the hospital. One would expect him to say "I am sorry; I shall resign."
That has not happened. A two-man inquiry was set up. It was so unsatisfactory that no-one took notice of it. Then an inquiry on a better basis was set up under a Mr. Camp, a lawyer—not a QC, although he may be one day since he is on his way up. He produced a large and thick report. He says that management at the hospital has broken down and, instead of blaming the person paid the top salary, he goes five grades down and finds a nurse scapegoat. "Sack the nurse and solve the problem" is his answer, but instead of the nurse going quietly, an absurdly, unnecessarily large number of good, professional nurses have to go. What has happened is quite dreadful. Even more dreadful are the actual charges against Paul Walsh, which were delivered to him three days ago. Charge No. 2 reads:
During the first few months following your appointment as Senior Nursing Officer (Psychiatry), you brought about a change in the attitude of nursing staff to the permissibility of treating unwilling patients under Section 25 of the Mental Health Act 1959.
What an extraordinary charge to make. Incidentally, that charge was not read to Mr. Walsh before he went to the disciplinary hearing. He was sacked, and when he asked why he had been sacked, this absurd charge was typed out and he was accused of it.
Charge No. 15 read:
On 22 March 1982 you took a perverse and unhelpful and legally unsound view about the alleged invalidity of Section 26 papers.
Fancy sacking a person for being legally unsound. Who would 'scape whipping? Who in this House has not been legally unsound? Even the Minister, brilliant, rising Prime Minister material, lawyer that he is would not plead not guilty to having been a little unsound in his life.
Yet this so-called health authority, the East Berkshire health authority of 81, Frances Road, Windsor, Berks, seriously levels that charge as a sackable charge against a nurse five grades down and leaves all the senior management, all the senior nurses and all the senior doctors still in salary, in post and in charge of their jobs.
Charge No. 17 said:

In December 1981, your investigation of a serious complaint by a Consultant Psychiatrist was superficial and inaccurate.
Who in this House has not been guilty of a little superficiality here and a little inaccuracy there? The very fact that these charges could seriously be put forward as grounds for sacking someone shows that the Department of Health and Social Security's district health authority's management leaves so much to be desired that the Minister has a responsibility on this occasion to stand up for the individual against the bumbling bureaucratic management which the Government came to office to suppress.
Charge No. 18 said:
In January 1982 you allowed your staff, down to the most junior, to read the confidential Watt-Killen Report.
That is the type of nonsense that the so-called East Berkshire health authority uses as material to dismiss a junior nurse while keeping all his seniors in post. That is the type of management that the Minister will defend from the Dispatch Box. That will not wash in any way. This is not the Paul Walsh affair, as theNursingTimes called it last week. It is an affair which is central to the whole future of nursing.
I should like to quote a paragraph from an excellent article in theNursing Timeslast week which was written by me:
The professional, multidisciplinary road implies, at the end of the day, the right of professionals to refuse to take action which they see as unprofessional.
In this area no set of professions can be more equal than others. If we are going multidisciplinary, it is necessary to go truly multidisciplinary. If we are going hierarchical, let us say that we are going hierarchical and stop prating about a multidisciplinary approach. In my article I stated:
No one challenges this right in doctors".
No doctor, nurse or occupational therapist would dream of saying to a doctor 'I demand that you take this action". No one challenges .doctors in that way, and I believe that the same right should be accorded to nurses. That is what being a professional is all about. Either the Government believe in the multidisciplinary approach, which means allowing professionals to withhold action when they feel it unprofessional, or they should cast it aside and say that they want hospitals to be run with doctors telling other professionals what they should do.
This conscience clause is central to the future of the nursing profession. I plead with the Minister to take it seriously and not merely to read out a departmental brief that defends the doctors and rubbishes Paul Walsh, which would be so simple to do. I do not defend every action that he takes, but far more important than what has happened at Wexham Park is whether the nursing profession is allowed to be a profession rather than a group of paramedicals at the beck and call of the doctors. It is essential that the House passes the new clause to show its faith in not only the medical profession but the nursing profession.

Mr. Tim Smith: I had hoped that it might not be necessary for me to contribute to the debate. In the light of what has been said I consider it necessary to do so to restore some balance. It is clear that the new clause is largely, if not wholly, inspired by one incident which occurred at Wexham Park hospital psychiatric unit, which is in my constituency.
I have taken no part previously in the discussions on the Bill and I do not claim to be an expert on the matters under discussion. However, I read the article to which the hon.


Member for Lewisham, West (Mr. Price) has referred in theNursing Timesof 13-19 October and I listened to his speech. It is clear that the clause and the hon. Gentleman's views are based on one incident, and it is extremely dangerous to generalise on one incident. We might be forgiven for thinking that this was a debate, not on the hon. Gentleman's clause, but on the events at the hospital's psychiatric unit over the past few months.
The hon. Gentleman has made a number of allegations and I do not wish to delay the House by dealing with them all. As I have said, it is always extremely dangerous to generalise on the particular, and perhaps there can be no clearer an example than this instance. As the hon. Gentleman said, the events that occurred have been the subject of a full inquiry by the Oxford regional health authority. He attempted to malign the chairman of the inquiry, which was rather unfortunate. As well as being a lawyer, he happens to be the chairman of a neighbouring health authority. The report has been accepted by both the regional health authority and by the East Berks health authority.
Whether one likes it or not, the man at the centre of the inquiry, whichever way one considers it, is Mr. Walsh, who was formerly the senior nursing officer. The report makes incredibly depressing reading. A tragic series of events took place. It is not fair to blame the management or the nursing staff exclusively. Had reasonable people been employed at the unit on both sides, the events that occurred would probably have never taken place.
11.15 pm
However, the fact is that, although relations at the unit were not particularly good before Mr. Walsh arrived, after his arrival they deteriorated rapidly. The House should be aware of Mr. Walsh's attitude to doctors. It is best exemplified by a statement that he made, and which he admits having made, to the effect that the unit at which he was employed could manage perfectly well without doctors. He made that statement to other nurses on a so-called study day.
Mr. Walsh also told the inquiry that the only difference between himself and a psychologist was that a psychologist was paid more than he was. That is interesting. The report states:
Much of Mr. Walsh's evidence and conduct led us to believe that he harbours a strong resentment of doctors. His observation that the unit could manage without them appeared to represent a fundamental tenet of his beliefs. During his evidence, he spoke in disparaging terms of nearly all the doctors in the unit. He told us quite seriously, on what he admitted was hearsay evidence, of one consultant who was said to admit private patients to the unit and who had been seen with a suitcase full of banknotes, said to belong to a rich Arab. We dismissed this as nonsense.
Quite right, too.
Nurses, on the other hand, according to Mr. Walsh, possess all sorts of special skills—hypnotherapy, marital therapy, group therapy and various other therapies. Above all, apart from doctors and nurses, Mr. Walsh has a particularly high opinion of his own abilities. The report states:
Both in his evidence and in another context altogether, he described his post"—
that was a former post—
as a nurse in research methods at the University Department of Psychiatry—a perfectly respectable and well thought-of position—as a 'research fellowship in Oxford'. This should be

contrasted with the reality of nearly eight years' registration as a student at the University of Surrey without having obtained a degree.
I congratulate anyone who can study at university for eight years without obtaining a degree. Unfortunately, following the departure of Mr. Walsh, the unit has been in the most ghastly situation. There has been rapid deterioration. Ordinary working relationships are virtually non-existent. However, there is no way in which outside intervention, apart from the help that ACAS is already giving, will achieve anything. Those matters must be sorted out at local level. That is where they started. I understand that some progress is being made in that direction.
The incident that led to Mr. Walsh's suspension was described to me in a letter, the only letter that I have received from a constituent about this matter. It states:
Paul Walsh was suspended for refusing to order his staff to forcibly inject a female patient with Depixol (a long acting tranquillising injection.) This lady was being detained under section 26 of the 1959 Mental Health Act.

Mr. Christopher Price: The hon. Gentleman has spent a long time trying to denigrate an individual. Will he confirm that that lady, when she went before the mental health review tribunal, was released from hospital and declared not to be suffering from mental illness?

Mr. Smith: I have not sought to deny any of the facts that have been put before the House by the hon. Gentleman. I said that I believed that this terrible situation had arisen because of faults on both sides at the unit. The hon. Gentleman concentrated on the management. All I was trying to do was to rectify the balance. All the parties are at fault. It is ridiculous to suppose that this situation arose only because the management was weak or the nursing staff was particularly unco-operative.
The hon. Member for Lewisham, West says that it is a test case for multidisciplinary procedures. I doubt whether it is a test case for anything. It is a ghastly episode, but I doubt whether one can draw any conclusions from it.
I agree that nursing is a noble profession, but what should a nurse do if he or she disagrees strongly with proposed treatment? What does a multidisciplinary approach mean? A management team in whatever sphere will comprise members of varying professions, but at the end of the day someone must make a decision. I recognise that nurses spend much more time with individual patients than consultants do. There should be prior discussion about treatment, but team members cannot opt out at the time when it is important for everyone to co-operate. That is a complete breakdown of the management relationship.
I accept that the new clause is put forward with the utmost good will, but I do not believe that such a provision would have helped in the particular situation. Mr. Walsh was given the chance not to participate in the treatment, but he continued to participate, so one is bound to question his motives. The example cannot lead to a general conclusion and we should not accept the new clause.

Mr. Charles Irving: I have a great deal of sympathy with many of the points made by the hon. Member for Lewisham, West (Mr. Price). To a more modest extent I share the views of my hon. Friend the Member for Beaconsfield (Mr. Smith), but he has laboured the situation of Mr. Walsh. In my previous speech I mentioned the grave anxiety about the serious injustices that might arise if the matter is not looked into yet again.
The climax of the horror story of Wexham Park involves not only Mr. Walsh and the problems of 16 nurses being suspended. A nursing officer is a senior member of the multidisciplinary or management team. One senior nursing officer has been sacked; another attended a disciplinary hearing on Friday and the result is not yet known. Mr. Walsh had nothing to gain and everything to lose. He took what he believed to be the correct professional attitude when he was given instructions that he felt were dreadfully wrong.
It is important to consider the whole story. There is a grave injustice. Much of the blame and all the punishment has been inflicted on one person. At the end of the day, management must accept responsibility. The senior management have a grave responsibility. The report that the East Berkshire authority has promised to implement states that inexperienced junior officers were breaking the Mental Health Act by signing forms in advance to prevent patients leaving the hospital and that a member of staff was appointed contrary to the Department of Health and Social Security guidelines in national circulars. These were grave breakdowns in management and cannot be blamed on Mr. Walsh. There were also inadequate or incomplete procedures for the admission of patients, the treatment of violent patients, the use of secure accommodation to lock up patients and the treatment of mother and baby. There was grave mismanagement at the top. Yet, Mr. Walsh is the only victim to date. The inquiry, under a learned lawyer, suggested that there was inadequate or nonexistent guidance to staff on how they should interpret the Mental Health Act 1959, with the result that nurses and doctors were unsure of how to treat patients.
In my previous speech I referred to a scandalous catalogue but did not give details. I hoped that that would not be necessary and that the matter would be picked up by the Department. But I cannot sit down and allow one person to be put in the pillory and stuck in the stocks when, by no means, does he carry the responsibility for all the serious breaks of regulations and misdemeanours that occurred in the East Berkshire authority in the management of the psychiatric unit.
At the end of the day, what has happened? The unit has been closed and boarded up. I was informed of that indirectly. The way that the operation was carried out was absolutely disgraceful—rather similar to an SAS attack as though there was a war to be fought. Not one nurse—not even the sister in charge of the psychiatric ward—was informed that the ward would be shut the following day. They knew nothing until the district management team arrived, together with the police, and patients were manhandled into wheelchairs. That was wholly scandalous.
Sixty beds, now empty, could be occupied and serviced by trained, caring and compassionate nursing staff. The average cost of caring for a patient is about £400 per week. I have been told, although it has not been confirmed, that some patients are being catered for in private mental institutions. The cost of the breakdown in the system of management at Wexham Park will be many hundreds of thousands of pounds. I appreciate that there are always two sides to every question, but when I read the report and a number of other papers, I felt ashamed that such a position should have arisen. In view of the comments from both sides of the House, it should be made absolutely clear that we are here not to pillory anyone, but to try to ensure that some semblance of justice is done. In my view, and that 

of many others, the nurses and the senior nursing officer have had a raw deal. They have seen senior people escaping the responsibility for which they are paid far more money than those who have been placed in the dock.

Mr. Kenneth Clarke: The debate on new clause 12 has turned largely, but quite properly as the choice of the three hon. Members concerned, into a debate about a series of unhappy incidents at Wexham Park, which have been used to illustrate the need for the new clause.
Although I shall deal with the problems raised in relation to Wexham Park, I wish to begin by reminding the House about the new clause, and the broad and general principles of legislation upon which the whole House has agreed until this point.
We agree that the Mental Health Act 1959 is unsatisfactory and unfair in many respects in the guidance that it gives to doctors, nurses and other professionals. One of the principal achievements of the Bill will be to codify clearly such important and difficult matters as when it is right to give treatment to a detained patient without consent. The Bill directly bears on problems such as those. Throughout the Bill we have accepted the principle—

Mr. Christopher Price: Mr. Christopher Pricerose—

Mr. Clarke: I do not accept that Wexham Park is entirely determined by this one issue, which has been chosen by those campaigning in this debate.

Mr. Christopher Price: Under the Bill, is it or is it not the duty of a nurse in any circumstance at all to obey a doctor if restraint is needed?

Mr. Clarke: The Bill allows one to give a legal answer, and good management and practice allows one to come to a common sense conclusion as well.
That brings me to the whole question of multidisciplinary working and co-operation between a team of professionals. I said earlier that absolutely rigid rules of law cannot make different professional people work together if they will not listen to each other, have no respect for each other and are in personal conflict. Wexham Park is a perfect illustration of that. If people cannot stand the sight of each other and are devoting most of their time to undermining the professional position of their rivals, drawing up a code of practice will be difficult. Regulations drawn up by the Secretary of State specifying the way in which they consult each other will be of no use whatever. I fear that a conscience clause of this kind will not have much bearing either.
The new clause is technically defective, but I would not dream of arguing on those grounds. It would give rise to great difficulties in practice. I do not believe that the new clause will solve the problem. I believe that it has been chosen to debate the general principle and draw lessons and conclusions from Wexham Park.
I have followed events at Wexham Park closely since the matter first arose and began to cause problems. I have kept in close touch with events. I am quite satisfied that the East Berkshire district health authority management team has acted properly throughout in the impossible situation that it inherited in part from the previous area health authority. I have only had a word with the chairman of the authority, Dr. MacWilliams, and assured him that


so far he has my support. I am satisfied that the team is doing everything possible to re-open the unit in more satisfactory circumstances.
Having looked at the Camp report and listened to the speeches this evening, it is obvious that a sad state of affairs existed in this psychiatric unit before matters came to a head and Mr. Camp was appointed to carry out the inquiry. I accept that few people connected with the unit emerge with complete credit. There were failings on several sides—by the medical staff, some of the management, and the nurses. The report reinforces the belief that multi-disciplinary co-operation is essential to a good psychiatric unit and the good care of patients.
It is clear that Wexham Park should not be taken as a test case of multidisciplinary working, because most things that could go wrong appear to have gone wrong. Having said that, I do not believe that the Camp report makes any attempt to whitewash everyone across the board. It makes many recommendations and contains much criticism. In public debate, it has been turned into an issue about the personal position of Mr. Paul Walsh. Before the inquiry Mr. Walsh's counsel referred to it as the Walsh inquiry. Mr. Walsh appears to regard it as turning upon him and his position. Mr. Walsh's position was one of the matters upon which Mr. Camp came to clear conclusions but it was only one part of the whole picture at Wexham Park.
Although I feel less restrained now than when the debate started, I am in some difficulty because I am not sure how far I am at liberty to quote from the Camp report of which I and my hon. Friend the Member for Beaconsfield (Mr. Smith) have a copy. If my hon. Friend the Member for Cheltenham (Mr. Irving) does not have a copy, he may have one. My copy is clearly labelled "Confidential" and it is an extensive document. It contains many direct strictures aimed at many people and some clear conclusions about many incidents.
I do not want to dip into the report too far, but I would quote one passage which does not go to anybody's personal position. Paragraph 6 of part Eon page 75 shows the conclusions of Mr. Camp and his colleagues about multidisciplinary co-operation and the position of the doctor within it. He says:
Finally, although we have studiously and perhaps with excessive detachment avoided expressing a view about 'medical primacy' in general terms, we must observe that a true understanding of the consultant's role is essential to any multidisciplinary clinical team. It is the consultant who is ultimately charged with responsibility for the care and treatment of patients in hospital. This does not mean that he is entitled to be autocratic or unreasonable or to disregard the opinions of other professionals. Indeed, it confers upon him an obligation to consider those opinions with the greatest care, to be responsive and to keep himself well-informed. Nor does it mean that the consultant is always right. It should, however, entail a realisation by other professionals that the deliberate obstruction or countermanding of the consultant's proposals for treatment is to arrogate to themselves a responsibility for patient care of a kind which they do not have in law or in practice.
I commend that to the House as a good and balanced description of how a multi-disciplinary team can work. It is not written by someone who conducted an inquiry taking the view that the consultant is almost always right. It does obviously commend the consultant to take into account the opinions of other professionals. However, in the end responsibility for medical treatment has to be the responsibility of the medical man.
What we are talking about in the other amendments and throughout the Bill is the extent to which, although the psychiatrist must have the ultimate responsibility for the medical treatment of a patient, because he is the only man qualified to give that medical judgment, he should nevertheless co-operate with the other professionals and draw upon their distinctive skills in a way which works to the advantage of the patients. However, the other professionals must accept that the prime medical responsibility is that of the consultant.
As my hon. Friend the Member for Beaconsfield said, on the evidence in this case Mr. Walsh plainly held quite different and extreme views. He did not even think that doctors were necessary in the unit at all.

Mr. Christopher Price: Leaving aside the hon. and learned Gentleman's last comment, which I understand is a piece of obiter dicta overheard in a lecture from Mr. Walsh, is it the Minister's view that, although it is the duty of other professionals not deliberately to obstruct or countermand the consultant's proposals, it is perfectly all right for the consultant to deliberately obstruct and countermand the proposals of other professionals? Is that the Minister's view of the multi-disciplinary approach?

Mr. Clarke: My tentative answer to that question would be that neither group of professionals should seek to overrule the other in their own special area; the specialty of the psychiatrist being medical treatment and clinical judgment and the specialty of the nurses being specialised nursing care, which, again, is a matter over which high professional standards must be maintained. The two should co-operate. Obviously, we trust that in the best psychiatric units they co-operate and respect each other's opinions.
I have only given that quotation to show that the Camp report was written by people who took a sensible and balanced view of what a multi-disciplinary team should be. There are 19 recommendations, of which only one is that Mr. Paul Walsh should be immediately suspended from duty and dealt with in accordance with the disciplinary policy operated by East Berkshire health authority in cases of serious misconduct. To go into the full details of Mr. Paul Walsh is to build up his position out of all proportion and to bring up the question of his dismissal, which has properly been resolved by the disciplinary procedures of the authority, subject, I understand to a further stage of appeal.
Given what has been said by the hon. Member for Lewisham, West (Mr. Price) and by my hon. Friend the Member for Cheltenham on behalf of Mr. Walsh, it should be pointed out that Mr. Camp and his colleagues—and I do not want to quote him, as there are difficulties—spent the equivalent of five full days hearing Mr. Walsh and his evidence. Therefore, they had ample time in which to judge him and to reach many conclusions. Those who have read the report will know that the issue did not turn on one incident of holding down a person receiving treatment, but that a stream of matters were investigated. Many complaints were examined. Mr. Walsh's views, and those of witnesses critical of him, were given.
I do not wish to quote from the report, but I can, without departing from it, say that Mr. Camp and his colleagues were satisfied that Mr. Walsh deeply resented the position of doctors, and adopted a thoroughly unhelpful attitude towards those with whom he was involved. He also


claimed expertise, experience and qualifications that he apparently did not possess and his whole style of conducting himself was obviously drawn on heavily by Mr. Camp and his colleagues in reaching their conclusions. Their conclusions about Mr. Walsh are copious. They are not confined to one incident and a long series of issues are cited. The breakdown of relations in Wexham Park and the difficulties that built up from 1981 began when Mr. Walsh appeared on the scene and took up his post of senior nursing officer.
A great deal has been said on behalf of Mr. Walsh. I have said something in defence of the authority. I am sure that the authority's first desire is to reopen the unit so that it is functioning as it should be. In that, it has my full support. Obviously, everyone wants the beds to be brought back into use and wants to see better practice followed. In saying that better practice should be followed, I entirely agree with my hon. Friend the Member for Cheltenham, who expressed his views about presigned forms being used by the doctors. That disgraceful procedure should not be pursued and plainly would be illegal under the Bill. All those things must be stopped. The unit must return to proper functioning. The authority is acting on the basis of an independent report, commissioned by the region. It is following the disciplinary procedures laid down for individuals and I am confident that the main aim is to get the unit working properly as soon as possible.
Therefore, such general conclusions should not be drawn from Wexham Park. It does not illustrate anything good about multi-disciplinary working. I hope that what was bad about Wexham Park will be corrected by the authority when it regains control of the situation. It is extremely unfortunate that while it attempts to do so, injunctions have to be obtained to prevent some people from returning to the premises. Constant attempts are made to reopen the case and to turn the whole thing around the work and position of one individual who is only one part of the whole picture.
The Bill will apply to the generality of hospitals and will assist the East Berkshire health authority and other health authorities. It represents a codification and an improvement in the law as it affects the treatment of patients and their detention and care in hospital. It also provides for the Mental Health Act Commission, and the code of practice which will give strong professional guidance to everyone in our hospitals, to ensure that the best practices are widely spread.
The new clause is defective, as well as being based on false premises drawn from Wexham Park. The hon. Member for Lewisham, West has made one of his typical campaigning speeches. He is a classic civil rights campaigner, and an effective and informed one, but civil rights campaigning does not always depend on a balanced view of incidents. The hon. Gentleman occasionally draws on incidents to dramatise a point that he wishes to make. However, Wexham Park, and the point that he has made about it, is not an adequate case for new clause 12. I hope that, having aired the matters that so concern him, the hon. Gentleman will withdraw the new clause.

Mr. Christopher Price: It is often said that hard cases make bad law, but the truth is that the House legislates on few issues that do not arise from single issues such as Wexham Park. We would not have children's committees in any local authority were it not for a single incident in

Worcestershire in 1948. The Mountbatten report on prisons stemmed from the escape of George Blake from Wormwood Scrubs. The Butler committee on mentally retarded and disordered offenders stemmed from a single issue that stirred Parliament to press the Government to set up the committee. The House legislates only when there is a breakdown in a system that is meant to work properly. This is how the House has operated for two centuries. If hon. Members do not understand that, they do not
understand anything.
It is the tradition of the House, when an incident of this kind occurs, to Lse it to raise an issue. I realise that the new clause may not be accepted by the House tonight, but I predict that Wexham Park, far from being dismissed as a breakdown of no importance to legislation, as the Minister described it, will be a step on the road to a true multidisciplinary approach where a number of professionals start to respect each other as equals and not look upon themselves as all equal except one primary medical profession, in the way that Minister spelt out when he supported Mr. Camp's view.
I thank the Minister for his speech, because he covered the ground. He might have been a little more even handed, because the Government are meant to be in favour of management and the buck stopping at the top instead of half-way down die system. That is what has happened in this case, as everybody knows. We know that Wexham Park has produced a scapegoat so that some people who are paid a great deal of money—much more than Members of Parliament—can wash their hands, say that it was not their fault, thank God that they have sacked a nurse, and everything will be all right in future. It will not be all right in future until all the professions in the Health Service run a system in which each respects the other.
It is for that reason that I should like to advise the House, as many hon. Members as I can persuade, to support the new clause.

Question put, That the clause be read a Second time:— —
The House divided: Ayes 52, Noes 113.

Division No. 306]
[11.50 pm


AYES

Alton, David
Lofthouse, Geoffrey

Beith, A. J.
McCartney, Hugh


Bennett, Andrew(St'kp't N)
McWilliam, John


Booth, Rt Hon Albert
Marshall, D(G'gow S'ton)


Campbell-Savours, Dale
Morris, Rt Hon A.(W'shawe)


Cocks, Rt Hon M(B'stol S)
Morris, Rt Hon C.(O'shaw)


Cowans, Harry
Pavitt, Laurie


Cryer, Bob
Penhaligon, David

Dalyell, Tam
Pitt, William Henry


Davidson, Arthur
Powell, Raymond(Ogmore)


Davis, Terry(B'ham, Stechf'd)
Price, C.(Lewisham W)


Dean, Joseph(Leeds West)
Ross, Ernest(Dundee West)


Dixon, Donald
Sever, John


Dormand, Jack
Skinner, Dennis


Eastham, Ken
Spearing, Nigel


Ellis, R.(NE D'bysh're)
Steel, Rt Hon David


Ennals, Rt Hon David
Thomas, Dafydd(Merioneth)


Evans, loan(Aberdare)
Thorne, Stan(Preston South)


Evans, John(Newton)
Wainwright, E.(Dearne V)


Foster, Derek
Weetch, Ken


Freeson, Rt Hon Reginald
Welsh, Michael


George, Bruce
Whitehead, Phillip


Hardy, Peter
Winnick, David


Harrison, Rt Hon Walter
Young, David(Bolton E)


Haynes, Frank



Homewood, William
Tellers for the Ayes:


Howells, Geraint
Mr. Allen McKay and


Johnston, Russell(Inverness)
Mr. George Morton.





NOES

Alexander, Richard
Marlow, Antony


Alison, Rt Hon Michael
Mather, Carol


Ancram, Michael
Maude, Rt Hon Sir Angus


Aspinwall, Jack
Maxwell-Hyslop, Robin


Atkinson, David(B'm'th,E)
Mayhew, Patrick


Baker, Nicholas(N Dorset)
Mellor, David


Bendall, Vivian
Meyer, Sir Anthony


Benyon, Thomas(A'don)
Mills, lain(Meriden)


Berry, Hon Anthony
Moate, Roger

Best, Keith
Morrison, Hon C.(Devizes)


Biggs-Davison, Sir John
Murphy, Christopher


Blackburn, John
Neale, Gerrard

Boscawen, Hon Robert
Needham, Richard


Bottomley, Peter(W'wich W)
Neubert, Michael


Bright, Graham
Newton, Tony


Brinton, Tim
Osborn, John


Brown, Michael(Brigg &amp; Sc'n)
Page, John(Harrow, West)


Bruce-Gardyne, John
Page, Richard(SW Herts)


Bulmer, Esmond
Pattie, Geoffrey


Carlisle, John(Luton West)
Percival, Sir Ian


Chalker, Mrs. Lynda
Price, Sir David(Eastleigh)


Chapman, Sydney
Proctor, K. Harvey


Clark, Hon A.(Plym'th, S'n)
Raison, Rt Hon Timothy


Clarke, Kenneth(Rushcliffe)
Renton, Tim


Cockeram, Eric
Rhys Williams, Sir Brandon


Cope, John
Ridsdale, Sir Julian


Costain, Sir Albert
Roberts, M.(Cardiff NW)


Cranborne, Viscount
Rossi, Hugh


Crouch, David
Rumbold, Mrs A. C. R.


Dickens, Geoffrey
Shaw, Giles(Pudsey)


Dover, Denshore
Shaw, Sir Michael(Scarb')


Dunn, Robert(Dartford)
Shepherd, Colin(Hereford)


Faith, Mrs Sheila
Smith, Tim(Beaconsfield)


Finsberg, Geoffrey
Speed, Keith


Goodhart, Sir Philip
Speller, Tony


Goodhew, Sir Victor
Spicer, Jim(West Dorset)


Gow, Ian
Spicer, Michael(S Worcs)


Griffiths, Peter(Portsm'th N)
Stanbrook, Ivor


Grist, Ian
Stevens, Martin


Hamilton, Hon A.
Stradling Thomas, J.


Hampson, Dr Keith
Taylor, Teddy(S'end E)


Heddle, John
Temple-Morris, Peter


Henderson, Barry
Thompson, Donald


Hooson, Tom
Thorne, Neil(IIford South)


Hunt, David(Wirral)
Trippier, David


Jessel, Toby
van Straubenzee, Sir W.


Jopling, Rt Hon Michael
Viggers, Peter


Lang, Ian
Waddington, David


Lester, Jim(Beeston)
Waller, Gary

Lloyd, Peter(Fareham)
Watson, John


Lyell, Nicholas
Wells, Bowen


McCrindle, Robert
Wheeler, John


Macfarlane, Neil
Wickenden, Keith


MacKay, John(Argyll)
Wolfson, Mark


Macmillan, Rt Hon M.



McNair-Wilson, M.(N'bury)
Tellers for the Noes:


Madel, David
Mr. Tristan Garel-Jones and


Major, John
Mr. Peter Brooke.

Question accordingly negatived.

Clause 3

ADMISSION FOR ASSESSMENT

Mr. David Atkinson: I beg to move amendment No. 108, in page 2, leave out from line 37 to line 42 and insert—
'(lA) Within 3 days of the admission of a patient for assessment, the hospital managers shall take such steps as are practicable to inform the person (if any) appearing to be the nearest relative of the patient that the admission has been made and of the power'.'.
12 midnight
The amendment proposes three significant changes to clause 3(2). First, it transfers the burden of contacting the

nearest relative about the compulsory admission of the patient from the mental health officer to the hospital administration. Secondly, it provides a timetable for such contact to be made. I suggested a maximum of three days, although obviously one would want contact to be made as quickly as possible—within 24 hours. That effectively eliminates the involvement of the nearest relatives who are not already directly and personally involved with the patient. I shall explain the advantages in a moment, but I want to stress that it does not remove the new right already introduced in the Bill for the nearest relative to be informed of the patient's admission.
I argue in favour of the proposed amendment, first, on the ground of efficiency. Hospital management and administrations are already in the business of providing information to the nearest relatives. Surely, they are in a better position to offer a more practical and efficient channel of information about admission or application for admission than the mental welfare officer.
Secondly, this change would eliminate a potential conflict between the parties currently involved with the patient—the welfare officer and the nearest relative. The officer dealing with the admission is already involved in the tense and strained circumstances surrounding the admission. The Bill, as drafted, imposes on him the further duty of informing the nearest relative. He knows that it will only add to his present problems and difficulties. If that responsibility were shifted to the hospital administration, as I propose, it would eliminate that anxiety for the mental welfare officer.
Thirdly, the health care treatment provided by the mental welfare officer is likely to be better, because he will be free of the responsibility of locating and contacting the relatives, that being henceforth, as a result of my amendment, the task of the hospital administration. He will have more time to devote to the important tasks involved in treatment. If my amendment is not accepted, I suspect that we shall need more mental welfare officers because of the extra duties proposed in this clause.

Mr. Andrew F. Bennett: I thank the hon. Member for Bournemouth, East (Mr. Atkinson) for giving way. Will he explain what he means by "inform"? If the hospital administrator does that, it tends to be done by letter or telephone, and there may be difficulty in passing on the information. If the mental welfare officer does it, "inform" will entail more than the actual provision of information; it will involve ensuring that the person who receives the information also understands it.

Mr. Atkinson: I had hoped that the message in support of my amendment was clear—that the hospital administration would be in a better position to get in touch with the nearest relatives.
The only possible theoretical objection to the amendment that I can foresee is that if there is no nearest relative directly or personally involved with the patient, the nearest relative or relatives, whoever or wherever they may be, are unlikely to be informed of compulsory admission until after the admission. However, those relatives who wish to be kept informed will already be informed because of their personal involvement with the patient. If they are not already closely involved with the patient, the information about admission would not require them to take advantage of the right of discharge on behalf of the patient.
In conclusion, I am tempted to describe some examples that would illustrate the impracticalities of the clause, but in view of the late hour I shall resist the temptation. I hope that my hon. Friend will accept my arguments and recommend my amendment to the House.

Mr. Geoffrey Finsberg: My hon. Friend the Member for Bournemouth, East (Mr. Atkinson) tried to show the difficulties that may arise if we leave the Bill in its present form. I shall try to convince him that his proposal will not be helpful. If the House approves the amendment the social worker will not then be required to tell the patient's family that he was about to be admitted to hospital under compulsory powers. It is essential that the social worker should be in touch with the family and should keep them informed, but on occasion the admission may be urgent and the social worker may not find the relative in time. In that case, the news of the admission must come afterwards.
Clause 3(2) requires the social worker to take such steps as are practicable, so there is no question that contacting the family might cause undesirable delay. As my hon. Friend will appreciate, in many cases social work intervention with the family may help to avoid a hospital admission. Therefore, I do not support a proposal that suggests that the social worker need not contact the relatives. I hope that the nearest relative would be contacted within three days, but if it takes four days or a week it is still important to keep trying. It is better to have the words "a reasonable time" because they will be interpreted sensibly to reflect the circumstances.
I hope that my hon. Friend will see that, helpful though he is trying to be, his proposal will not achieve what he wishes and that the relatives would be best served by leaving matters where they are. I hope that I can persuade him to withdraw his amendment.

Mr. David Atkinson: Perhaps I should have referred to some of the examples that I had in mind in order to describe the practicalities of my amendment, but, in view of what my hon. Friend said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Geoffrey Finsberg: I beg to move amendment No. 1, in page 3, leave out lines 3 to 14.

Mr. Deputy Speaker: With this, it will be convenient to take Government amendments Nos. 14, 16 and 74.

Mr. Finsberg: The amendments seek only to make technical corrections to clause 3(2)(1B) that was added to the Bill as a result of an amendment moved in Committee by the hon. Member for Birmingham, Stechford (Mr. Davis). It substitutes for the hon. Gentleman's amendment a new subsection in the part of the legislation that deals with the duties of mental welfare officers—section 54 of the Act and clause 16 of the Bill. That is a more appropriate place for the provisions.
It also removes the reference to hospital managers because they do not employ social workers and cannot therefore instruct a social worker to investigate a case. The requirement about the prescribed forms has been replaced by the requirement that the social worker records his reasons in writing. That does not weaken the requirement, but makes it simpler to operate and far less bureaucratic.
We have also taken the opportunity to correct a reference in section 54(1) to the "local authority" so that

it refers to the "local social services authority." so that it refers to the "local social services authority." The amendments do no more than tidy up an excellent part of the Bill in response to suggestions made in Committee.

Mr. Terry Davis: I am grateful to the Minister for his explanation. Amendment No. 1 deletes a provision added in Committee against the Government's wishes, but Government amendment No. 16 replaces that provision elsewhere. The Minister referred to a difference in the provision. The original amendment deliberately placed an obligation on the social services or hospital managers. I intended that nearest relatives should be able to contact hospital managers. I did not appreciate that social workers and mental welfare officers are not employed by hospital managers. I am happy to accept that all such workers are employed by local authorities. I am grateful to the Government for agreeing with the Committee and tabling a sensible amendment.

Amendment agreed to.

Clause 4

ADMISSION FOR TREATMENT

Mr. Pitt: I beg to move amendment No. 3, in page 4, line 11, after 'persons', insert 'from serious harm'.

Mr. Deputy Speaker: With this it will be convenient to discuss the following amendments:
No. 8, in clause 6, page 5, line 31, after 'others', insert 'from serious harm'.
No. 10, in clause 12, page 8, line 44, after 'persons', insert 'from serious harm'.
No. 12, in page 9, line 18, at end insert 'from serious harm'.
No. 19, in clause 37, page 26, line 38, at end insert 'from serious harm' .
No. 20, in page 27, line 6, at end insert 'from serious harm'.

Mr. Pitt: I remind the House of what I said on Second Reading. I said that the Minister should look carefully at a new wording that would apply to the detention of patients who pose a threw of serious harm rather than a minor inconvenience. I quoted a section 65 order made in 1962 involving a person who stole a pair of slippers and committed a minor assault.
Clause 4(2)(c)states
that it is necessary for the health or safety of the patient or for the protection of other persons
I propose that that should read
for the protection of other persons from serious harm.
We are considering a basic civil liberties argument. Mentally disordered people should not be locked up to protect people from a minor inconvenience which would not be considered unduly reprehensible if caused by a "normal" individual.
We are discussing the "protection of other persons", but from what? We have no argument against protecting people from attack with a carving knife or some other weapon, but it is not clear that the provision will be so limited. Why cannot the Bill be specific? The Guild of Catholic Doctors says that it is advised that a psychopathic disorder is not a mental illness recognised as such by the medical profession. Particular psychiatrists in the United


Kingdom broadly agree that neither abnormally aggressive nor seriously irresponsible conduct is sufficient to indicate that somebody is mentally ill.
Clause 42(1)(b)would make it possible for anyone of any age who exhibited such conduct to be compulsorily detained in a mental hospital, even if he or she had committed no criminal offence, provided that a medical practitioner believed that the treatment was likely to alleviate or prevent deterioration of his conduct. If enacted in its present form, the provision would therefore create a unique new class of people whom the State could deprive of their liberty when they had not offended against its laws and were not mentally ill. No Member of the House would wish that to be inflicted upon people who may have aberrated but who presented no particular physical threat. I am thinking of people who may wander up to one in the street and remonstrate, and perhaps talk continually about football results. I am not referring to people who offer physical violence.
12.15 am
We should examine the words of this clause very carefully. They should be amended and I hope that the Minister will be able to accept my amendment on that basis, for the protection of other persons from serious harm. That is the intention of this part of the clause. It would be far better if it were made so specific as to prevent people from being detained or being taken away merely because they are a nuisance, an inconvenience or an annoyance, when that is not the tenor or the meaning of the clause. In the clause we wish to protect people from serious harm, injury and threat and I hope, on that basis, that the Minister will be able to accept my amendment.

Mr. Geoffrey Finsberg: These amendments were discussed in another place and were not accepted. I hope to persuade the hon. Member for Croydon, North-West (Mr. Pitt) that they ought not to go into the Bill. The hon. Gentleman is confusing a very important distinction between the need to protect other people as a ground for detaining a mentally disordered person for treatment and the more stringent test used by a court in imposing restrictions on the discharge of some offender patients.
The Bill and the Mental Health Act 1959 provide that one of the alternative tests to be net for mentally disordered people to be detained under the civil powers of the Act is the protection of other persons. These amendments would have the condition that it must be from "serious harm". We believe that this is too stringent a test, especially since the same words already appear elsewhere in the Bill but in a very different context.
Clause 27 introduces the phrase
the protection of the public from serious harm
in the context of a court imposing restrictions on the discharge from hospital of an offender patient. The issue there is surely quite a different one. The decision to send the offender to hospital has already been taken. What the court has then to decide is whether the offence which this person has committed and all his previous history suggest that his discharge may put the public at risk. It is right that if special restrictions are to be put on that person's discharge the risk to the public must be a serious one. That is why we have included clause 27(1) in the Bill. But the decision to impose special restriction is different from the decision to detain a mentally disordered person in the first

place, so different criteria are needed. To use the same criteria would have very strange consequences for the important distinction between restricted and unrestricted patients.
I must correct the hon. Gentleman. The Bill does not provide for someone to be detained just because he is a nuisance, and rambles in the street. He must be mentally disordered within the strict meaning of the Act. If he is suffering from psychopathic disorder or mental impairment he must be treatable; his mental state must be such that he needs hospital treatment and it must be impossible to provide it other than by detaining him. Only if all these tests are satisfied does the question arise whether detention is necessary for his own health or protection or alternatively for the protection of others.
I suggest that that strikes a reasonable balance between the interests of the individual, which is what the Bill is all about, and those of the public. It is a balance that we believe the Bill has already tilted further in favour of the individual. I do not believe that it would be helpful to try to circumscribe what the public are being protected from. I hope that on reflection the hon. Gentleman will feel able to withdraw his amendment.

Mr. Pitt: I listened carefully to the Minister and I am grateful for his exposition. However, I feel that the amendment is fundamental to civil rights, many of which have already been raised in the Bill. The Minister has given a lucid and interesting exposition but on this occasion I cannot withdraw the amendment. I wish it to be put to a vote.

Question put, That the amendment be made:—
The House divided: Ayes 35, Noes 104.

Division No. 307]
[12.20 am
AYES


Alton, David
Lofthouse, Geoffrey


Bennett, Andrew(St'kp't N)
McKay, Allen(Penistone)


Campbell-Savours, Dale
Marshall, D(G'gow S'ton)


Cocks, Rt Hon M.(B'stol S)
Morris, Rt Hon A.(W'shawe)


Cowans, Harry
Morton, George


Cryer, BobPitt,
Williarn'Henry


Davidson, Arthur
Powell, Raymond(Ogmore)


Davis, Terry(B'ham, Stechf'd)
Price, C.(Lewisham W)


Dean, Joseph(Leeds West)
Skinner, Dennis


Dixon, Donald
Spearing, Nigel


Dormand, Jack
Thorne, Stan(Preston South)


Eastham, Ken
Wainwright, E.(Dearne V)


Ennals, Rt Hon David
Weetch, Ken


Foster, Derek
Welsh, Michael


Freeson, Rt Hon Reginald
Young, David(Bolton E)


George, Bruce



Harrison, Rt Hon Walter
Tellers for the Ayes:


Haynes, Frank
Mr. A. J. Beith and


Howells, Geraint
Mr. Russell Johnston.




NOES


Alexander, Richard
Brooke, Hon Peter


Alison, Rt Hon Michael
Brown, Michael(Brigg &amp; Sc'n)


Ancram, Michael
Bruce-Gardyne, John


Aspinwall, Jack
Bulmer, Esmond


Atkinson, David(B'm'th,E)
Carlisle, John(Luton West)


Baker, Nicholas(N Dorset)
Chalker, Mrs. Lynda


Bendall, Vivian
Chapman, Sydney


Benyon, Thomas(A'don)
Clark, Hon A.(Plym'th, S'n)


Berry, Hon Anthony
Clarke, Kenneth(Rushcliffe)


Best, Keith
Cockeram, Eric


Biggs-Davison, Sir John
Cope, John


Blackburn, John
Costain, Sir Albert


Boscawen, Hon Robert
Cranborne, Viscount


Bottomley, Peter(W'wich W)
Crouch, David


Bright, Graham
Dickens, Geoffrey


Brinton, Tim
Dover, Denshore






Dunn, Robert(Dartford)
Page, Richard(SW Herts)


Finsberg, Geoffrey
Pattie, Geoffrey


Goodhart, Sir Philip
Percival, Sir Ian


Goodhew, Sir Victor
Price, Sir David(Eastleigh)


Griffiths, Peter(Portsm'th N)
Proctor, K. Harvey


Grist, Ian
Raison, Rt Hon Timothy


Hamilton, Hon A.
Renton, Tim


Hampson, Dr Keith
Rhys Williams, Sir Brandon


Heddle, John
Roberts, M.(Cardiff NW)


Henderson, Barry
Rossi, Hugh


Hooson, Tom
Rumbold, Mrs A. C. R.


Jessel, Toby
Shaw, Giles(Pudsey)


Jopling, Rt Hon Michael
Shaw, Sir Michael(Scarb')


Lang, Ian
Shepherd, Colin(Hereford)


Lester, Jim(Beeston)
Smith, Tim(Beaconsfield)


Lloyd, Peter(Fareham)
Speed, Keith

LyeII, Nicholas
Speller, Tony


McCrindle, Robert
Spicer, Jim(West Dorset)


MacKay, John(Argyll)
Stevens, Martin


McNair-Wilson, M.(N'bury)
Stradling Thomas, J.


Major, John
Taylor, Teddy(S'end E)


Marlow, Antony
Temple-Morris, Peter


Mather, Carol
Thompson, Donald


Maude, Rt Hon Sir Angus
Thorne, Neil(IIford South)


Maxwell-Hyslop, Robin
Trippier, David


Mayhew, Patrick
van Straubenzee, Sir W.


Mellor, David
Viggers, Peter


Meyer, Sir Anthony
Waddington, David


Mills, lain(Meriden)
Waller, Gary


Moate, Roger
Watson, John


Morrison, Hon C.(Devizes)
Wells, Bowen


Murphy, Christopher
Wheeler, John


Neale, Gerrard
Wickenden, Keith


Needham, Richard
Wolfson, Mark


Neubert, Michael



Newton, Tony
Tellers for the Noes:


Osborn, John
 Mr.David Hunt and


Page, John(Harrow, West)
Mr. Tristan Garel-Jones.

Question accordingly negatived.

Clause 5

MEDICAL RECOMMENDATIONS

Mr. Geoffrey Finsberg: I beg to move amendment No. 4, in page 4, line 38, leave out paragraphs(a)and(b)and insert—l;
'(a)compliance with that subsection would result in delay involving serious risk to the health or safety of the patient; and'.

Mr. Deputy Speaker: With this we shall take amendment No. 113, in page 4, line 38, leave out paragraphs(a)and(b)and insert—

(a)Compliance with that subsection would result in delay involving serious risk to the health or safety of the patient; and
(b)Compliance with that subsection would involve a delay of more than forty-eight hours from the completion of the examination by the first practitioner; and'.

Mr. Finsberg: Amendment No. 4 deals with the circumstances in which the two medical recommendations required for admission under the Act may both be made by doctors working at the receiving hospital.
The Bill, as amended in another place, provided that one of the circumstances that must be fulfilled is that there would otherwise be undesirable delay. But anxiety was expressed in Committee about what constituted "undesirable delay". Paragraphs(a)and(b)of clause 5(3) were the result of the efforts of my hon. Friend the Member for Basildon (Mr. Proctor) to make the position clearer. I recognise the anxiety, but I feel that the 48-hour time limit

is unduly restrictive. The amendment meets the Committee's worry by substituting for "undesirable delay" the expression
delay involving serious risk to the health or safety of the patient".
I understand that my hon. Friend is content, as the form of our amendment derives from an alternative that he put forward in Committee.
The hon. Member for Birmingham, Stechford (Mr. Davis) seems to want the best of both worlds--I do not blame him for trying—by taking our new paragraph(a)and retaining paragraph(b)with its 48-hour time limit. Let us suppose that on Monday afternoon a social worker knows that he cannot get a medical recommendation from an independent doctor until Wednesday morning. He and the first doctor may consider that it would involve serious risk to the patient's health and safety to wait until Wednesday morning; but Wednesday morning is still within the 48-hour limit. The hon. Gentleman would oblige them to take that serious risk and wait. Not only is that not acceptable, I doubt whether it is what the hon. Gentleman has in mind in trying to assist the patient and look after his health and safety.
I suggest that if the hon. Gentleman reconsiders his amendment, he will realise that it will not be of assistance. I hope that, on reflection, he will agree that Government amendment No. 4 goes as far as possible, and that he will not press his amendment.

Mr. Terry Davis: As the Minister explained, Government amendment No. 4 seeks to change the amendment made in Committee. We are discussing the relationship that should, or should not, exist between the two doctors who recommend admission under sections 25 or 26 of the 1959 Act. When we considered this part of the Bill in Committee, the Government suggested that the two doctors could be on the staff of the same hospital in certain circumstances, including the case where an undesirable delay could arise in waiting for a doctor not on the staff of the hospital to support the admission of a patient under sections 25 or 26.
The Committee considered the Government's position and debated several amendments. The Minister referred to a successful amendment tabled by the hon. Member for Basildon (Mr. Proctor), which had the full support of the Committee. We agreed that the hon. Member for Basildon was the ideal person to move the amendment, and he succeeded in amending the Bill. The Committee amended the Bill against the Government's wishes, and any departure from the normal requirement must be either in the best interests of the patient or where, there would otherwise be a delay of more than 48 hours.
The Bill, as printed, is not correct. The Committee passed an amendment which removed the reference to "undesirable delay" and replaced it with two points. First, it would be desirable to have two doctors with a relationship if it was in the best interests of the patient, or, secondly, if compliance with the requirement would involve a delay of more than 48 hours. For some reason that I do not understand, the Bill, as amended by the Special Standing Committee, was printed with the first of the two points correctly printed, but with the second mysteriously printed incorrectly. The mystery deepens because the Bill reads:
compliance with that subsection would involve a serious risk to the health or safety of the patient


That expression is amazingly close to what the Government are now suggesting in their amendment. I do not know how that crept into the printed copy.
The reference to a delay of 48 hours has been mysteriously changed, but a correction slip has been printed for distribution with the Bill, and the Government are putting it right by tabling amendment No. 4. It goes some way towards the view of the Committee by incorporating a reference to serious risk to the health of the patient, but that is really defining
the best interest of the patient".
It is not the same as dealing with the delay. When we discussed the matter in Committee, the question of time was considered to be important. it was the purpose of the amendment tabled by the hon. Member for Basildon.
The merits of my amendment No. 113 are that it would keep the definition of the best interests of the patient by referring to the serious risk to health and safety. It would also retain the 48-hour limit, which was the clear wish of the Committee. The two things are different. The Minister seems to be confusing the two by suggesting that the 48-hour period is part of the definition of
the best interests of the patient".
It is not. It is an attempt to limit what is administratively convenient for the hospital.
The Minister explained the change by saying that he would replace "undesirable delay" by "serious risk" and that the alternative would be to wait for the arrival of a second doctor. He cited the situation where a second doctor was unable to arrive for perhaps three or four days, and said that would involve
a serious risk to the health or safety of the patient".
He suggested that the patient would be left waiting until the second doctor arrived.
That is not so. If it is not possible for the hospital to observe the 48-hour limit, it can use section 29 to admit the patient. If by waiting 48 hours the health or safety of the patient were put at serious risk, and it was considered desirable to admit the patient within six hours, the hospital could again use section 29. It is not fair of the Minister to suggest that the alternative to amendment No. 4 is that patients will be left in limbo waiting for a doctor to arrive.
Either the safeguards for doctors in sections 25 and 26 are observed or the hospital should be frank, honest and open enough to use section 29 to classify it as an emergency admission. It should not try to find a way of avoiding the safeguards which the Committee and, I believe, Parliament wish to put on the use of sections 25 and 26 by providing that there should not be a relationship between the two doctors.

Mr. Andrew F. Bennett: I rise briefly to support my hon. Friend. There are distinct advantages in specific time limits rather than a requirement such as "as soon as is reasonably practicable". If the Minister knew that this Report stage would finish by two or three o'clock, rather than "as soon as is reasonably practicable", he would be much happier.
Clearly, specific times and time limits concentrate people's minds. If a hospital must get hold of the second doctor within 48 hours, there is a much greater chance of that doctor, perhaps at some personal inconvenience, making himself available. Without a specific time limit, the tendency would be to say that something else is more important and tomorrow will do.
I am sure that the Minister can think of many instances where things have been done simply because a specific time has been laid down. With the best intentions in the world, things get put off if no specific time limit is involved.

Mr. Proctor: It was because of my sympathy with such arguments that I moved the successful amendments in Committee. However, I did say that I was not committed to the arbitrary 48-hour time limit, other than by the confines of debating procedure. It so happens that I had another variety of amendments on this matter and the phrasing that got into the Bill, perhaps a little earlier than it might have done, was my starred amendment which could be debated but not voted upon. An error has been made and the good sense in the second group of amendments has got into the Bill a little earlier than it should have done. It is for that reason that I support the Government amendment, which is, in fact, mine.

Mr. Geoffrey Finsberg: I am grateful to my hon. Friend the Member for Basildon (Mr. Proctor) for that extremely helpful intervention. My hon. Friend's original idea seemed to appeal to the Committee. That is why, on mature reflection, we felt it possible to table amendment No. 4.
The hon. Member for Birmingham, Stechford (Mr. Davis) has not quite taken my point about the need to have the patient looked after in the broadest possible sense as quickly as possible. The 48-hour period chains us too much. The hon. Gentleman asked "Why not use section 29?". He will recall that we debated at some length the reasons why it was as well to tighten up on section 29. Yet, he is suggesting that in this case we might use section 29. That is not the right way of doing it. The flexibility which has now been introduced would be removed by accepting the hon. Gentleman's amendment, which was supported by the hon. Member for Stockport, North (Mr. Bennett). It is much safer and wiser to put in the point about "undesirable delay". I hope that, in the light of my remarks and those of my hon. Friend the Member for Basildon, progenitor of all this, the hon. Gentleman might be persuaded to withdraw his amendment.

Mr. Terry Davis: The Minister is correct in his reference to frequent debates in Committee about the need to tighten up section 29. All hon. Members were concerned about the abuse of the use of section 29 as a means of avoiding the safeguards which were provided in sections 25 and 26. We were concerned about the amount of evidence on the abuse of the use of section 29 in circumstances where other sections were more appropriate. It was used only to avoid those safeguards; in particular, the safeguard of a second doctor's opinion.
The Minister will also remember that in Committee I made the point that, although we wanted to discourage the abuse of section 29, that did not mean that we should weaken the safeguards of sections 25 and 26. That would simply be shuffling the cases between sections. If we put in more loopholes to sections 25 and 26 and apparently reduced the use of section 29, because people would use sections 25 and 26 without observing the safeguards, that would be an abuse of the reform. I made that point strongly in Committee. I still hold to it and I am sure that the Minister will recognise that.
Nevertheless, I do not want to delay the House longer than necessary. I accept that there are some valid arguments in what the Minister has said about the effect of a 48-hour period. Therefore, I shall not press amendment No. 113. I shall accept Government amendment No. 4, especially in view of the enlightening explanation by the hon. Member for Basildon (Mr. Proctor). I thought that the Government printers had anticipated the Government's thinking. I now learn that they were simply taking account of the hon. Member for Basildon's thinking.

Amendment agreed to.

Mr. Geoffrey Finsberg: I beg to move amendment No. 5, in page 5, line 2, leave out 'at the hospital' and insert
'(whether at the hospital or elsewhere)'.

Mr. Deputy Speaker (Mr. Bernard Weatherill): With this, it will be convenient to take Government amendments Nos. 6 and 7.

Mr. Finsberg: I can be brief because amendment No. 5 meets an undertaking that I gave in Committee in response to a point made by the hon. Member for Newcastle upon Tyne, East (Mr. Thomas). Amendments Nos. 6 and 7 meet points raised by the hon. Member for Lewisham, West (Mr. Price). I am glad that I have been able to respond to those two points.

Mr. Mike Thomas: I have no complaint about the Minister meeting his undertakings, which were given in terms in column 345 of the report of the Committee proceedings. I accept that he has met them. However, I am beginning to think that the Basildon experience is not unique. As a result of the Minister's phraseology, I am beginning to think that he has improper proprietorial aspirations in respect of amendments. I did not raise a point in Committee; I tabled amendment No. 12. What is the precise difference between leaving out "at the hospital", as proposed in my amendment, and this amendment? The only difference might be that the Minister can hope to claim credit for the amendment instead of me.

Amendment agreed to.

Clause 6

PATIENTS ALREADY IN HOSPITAL

Amendments made:
No. 6, in page 5, line 14, leave out paragraph(a).
No. 7, in page 5, line 24, at end insert—
'(3) The medical practitioner in charge of the treatment of a patient in a hospital may nominate one (but not more than one) other medical practitioner on the staff of that hospital to act for him under subsection (2) of this section in his absence.—[ Mr.Geoffrey Finsberg.]

Mr. Pitt: I beg to move amendment No. 9, in page 5, leave out lines 38 to 43 and insert
'the nurse may authorise the detention of the patient; and in that event the patient may be detained in the hospital for a period of six hours from the time when the detention was authorised or until the earlier arrival at the place where the patient is detained of a practitioner having power to furnish a report under that subsection; and the nurse shall, as soon as is practicable having regard to all the circumstances, record the fact that he had authorised the detention and the time of that authorisation in writing and in a form prescribed by the managers of the hospital at which the authorisation took place.'.

I move this amendment in the hope that I can help the Minister. I have no intention of pressing it to a Division. The Minister may recall that on Second Reading I commented on the fact that the original clause read:
the nurse may record that fact in writing; and in that event the patient may be detained in the hospital.
I pointed out that, when I first read that, it seemed as if the nurse would have to record the fact in writing before the patient was detained.
I hoped that the matter would have been clarified by now and that it would no longer appear that a patient could run amok with an instrument and that there would have to be some bureaucracy before he could be detained. However, that is apparently not so, because the clause still seems to give the impression that a nurse is obliged to record the fact in writing before detention can occur. I have moved the amendment to clarify the clause, and I commend it to the House. It leaves out lines 38 to 43 and inserts:
the nurse may authorise the detention…and the time of that authorisation in writing and in a form prescribed by the managers of the hospital".
It means exactly what it says. The nurse may authorise detention and subsequently, quite properly, record it. The nurse would not have to record the fact in writing before any detention.

Mr. Kenneth Clarke: I acknowledge that the hon. Member for Croydon, North-West (Mr. Pitt) has tabled an amendment that is designed to be helpful and does not challenge the principle, established by the Government to the Committee's satisfaction, that it is right to give the nurse—in exceptional circumstances—power to detain a patient for six hours. That would allow time for the arrival of a medical practitioner who had the power to consider whether detentiorL was justified. In fact, the two changes that the hon. Gentleman made would be undesirable in practice and would not be wise for the House to make.
I shall begin with the more administrative, perhaps the least important but still a significant, change. The first change of substance would be to require the nurse's written record to be in a form prescribed by the managers of the hospital where the authorisation took place. I accept the hon. Gentleman's argument that there should be some form laid down to ensure that the written records are in a recognisable and reasonable form. However, we should not want the form to be determined by the managers of each individual hospital. That might give rise to a wide variation in records. Some records of the important step of detaining a patient might be unsatisfactory.
The Government propose to make use of powers that they already have under section 56 of the 1959 Act to make regulations prescribing the form in which the necessary records should be made. That would mean that we should have one form throughout the country rather than the possibility of variation, which the hon. Gentleman's amendment would produce.
The hon. Gentleman's more substantial point is that the nurse should not be required to make the record before detaining the patient—that, in an emergency, the patient might be detained and then, as soon as practicable afterwards, the nurse should make a written record. That had some appeal, and I considered the matter carefully. I shall give the reasons why, on balance, it ought not to be accepted.
We must bear in mind that we are clarifying the law. Existing law gives protection to nurses, and it has been


relied upon by nurses for many years. First, section 3(1) of the Criminal Law Act 1967 allows the use of such force as is reasonable in the circumstances in the prevention of crime. There is also a common law defence available to staff who act to prevent violence, to save life or in selfdefence. Those are the legal powers on which nurses have to rely when, as from time to time happens, they decide that it is necessary to detain an informal patient for such time as is necessary to allow that patient to be sectioned.
We have proposed that, to clarify the law, the nurse should be given the new statutory power to detain the patient. However, there has been some criticism of that, even in Committee. As I recollect from our debates, there were those who were wary of this and attempted to reduce the time during which the nurse should have the emergency holding power. I understand those doubts and criticisms, because we are introducing an important new concept into law—that a nurse, of his or her volition, should have the power to deprive someone of his or her liberty for up to six hours, because, in the nurse's judgment, it is necessary.
As this is a new concept, we should arouse controversy and feed fears if we said that we should move from the position where the nurse was required to record the reason for exercising that power straight away to being allowed to lock up the patient and subsequently, at the earliest practicable time, making a record. There would be a further practicable problem because, under the Bill, the six hours run only from the moment that the written record is made. The hon. Gentleman's amendment does not correct that. As we are breaking new ground and there are some doubts, we should leave the clause as it stands.
I can see difficulties, and the hon. Gentleman quoted problems that might arise. I share his concern about the case that he described of a patient running amok with an instrument or weapon. Fortunately, the Bill will not replace the Criminal Law Act or the common law powers, so that in an emergency, when a dangerous or criminal act is threatened, the nurse would have no difficulty in relying on the Criminal Law Act or the common law for the brief period that would elapse between the detention and the making of the written record.
1 am
That is our judgment. Although tempted by this aspect of the hon. Gentleman's amendment, it is probably not wise or necessary to go so far. As we are breaking new ground, we would excite some civil libertarians too much if we accepted the hon. Gentleman's amendment. I hope that the hon. Gentleman appreciates that clause 6 has occupied its place in the Bill for some time. It was generally welcomed by the nursing organisations which gave evidence to the Special Standing Committee. To the best of my knowledge, no nursing organisation has proposed anything like the amendment or suggested that the Government should make a correction. The law should be amended in the manner that the Government propose in clause 6. It is not necessary to make the amendment proposed by the hon. Gentleman.

Mr. Pitt: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10

RE-CLASSIFICATION OF PATIENTS

Amendment made: No. 106 in page 7, line 28 at end add—
'(1B) Before furnishing a report under subsection (1A) of this section the responsible medical officer shall consult one or more other persons who have been professionally concerned with the patient's medical treatment. '.—[ Mr. Stan Thorne.]

Clause 12

DURATION OF AUTHORITY FOR DETENTION AND GUARDIANSHIP

Amendment made: No. 11 in page 9, line 8 at end insert—
'(3B) Before furnishing a report under subsection (3) of this section the responsible medical officer shall consult one or more other persons who have been professionally concerned with the patients"s medical treatment.".—[ Mr. Kenneth Clarke.]

Clause 14

DEFINITION OF RELATIVE AND NEAREST RELATIVE

Mr. Kenneth Clarke: I beg to move amendment No. 76 in page 10, line 18, after 'last', insert 'ordinarily'.

Mr. Deputy Speaker: With this it will be convenient to take Government amendment No. 75.

Mr. Clarke: This amendment makes technical changes to the amendment to clause 14 moved successfully by the hon. Member for Birmingham, Stechford (Mr. Davis). It follows a defeat that the Government suffered at the hands of the hon. Gentleman and his right hon. and hon. Friends assisted by a number of my hon. Friends. The Government have accepted the judgment of the Committee. As hon. Members understood at the time, the drafting was to some extent defective. These drafting amendments make sure that the Bill has the effect that was intended by the majority of the Committee.

Mr. Terry Davis: I rise only to express my appreciation of the Government's redrafting. As the Minister says, the Government suffered a defeat in Committee. I appreciate the manner in which they have taken their punishment and tabled these amendments. I understand that they give effect to the intentions of the Committee. The word "cohabitee", an ugly word that I do not much like, is dropped. It appeared only because of its common use in the Department of Health and Social Security. I understand that it is not employed to the same extent by parliamentary draftsmen. I am delighted. I wish that all references to cohabitees could be removed from other areas of social security and health legislation. We are grateful for the manner in which the Minister has handled the issue. I express my personal appreciation.

Amendment agreed to.
Amendment made:
No. 75 in page 10, line 31, leave out subsections (5) and (6) and insert—
'(5) After subsection (6) there shall be inserted—
(7) A person, other than a relative, with whom the patient ordinarily resides (or, if the patient is for the time being an in-patient in a hospital, last ordinarily resided before he was admitted), and with whom he has or had been ordinarily residing for a period of not less than five years, shall be treated for the purposes of this Part of


this Act as if he were a relative but—

(a)shall be treated for the purposes of subsection (3) of this section as if mentioned last in subsection (1) of this section; and
(b)shall not be treated by virtue of this subsection as the nearest relative of a married patient unless the husband or wife of the patient is disregarded by virtue of paragraph(b)of subsection (4) of this section.". '.—[ Mr. Kenneth Clarke.]

Clause 16

APPLICATIONS BY MENTAL WELFARE OFFICERS

Amendment made: No. 14 in page 11, line 13 leave out from beginning to 'there' in line 14 and insert—

'(1) Section 54 of the principal Act (duty of mental welfare officer to make applications) shall be amended as follows.
(2) In subsection (1) for the words "the local authority" there shall be substituted the words "the local social services authority".
(3) After subsection (1)'.—[ Mr. Kenneth Clarke.]

Mr. Geoffrey Finsberg: I beg to move amendment No. 15 in page 11, line 17 after 'patient', insert 'in a suitable manner'.
The amendment meets an undertaking given to my hon. Friend the Member for Abingdon (Mr. Benyon) to ensure that the Bill covers the special needs of deaf people. The amendment will require the mental welfare officer to use a suitable manner when interviewing a patient with a view to making an application for admission. This might mean that the interview should be conducted through an interpreter using sign language. My hon. .Friend was worried. We shall be making clear our intentions in guidance notes which will also remind staff to make special arrangements. 1 understand that the British Deaf Association is pleased with the amendment.

Mr. Mike Thomas: Is this really necessary? I am all for the objectives of the hon. Member for Abingdon (Mr. Benyon) and for the Minister meeting them, but it is a peculiar phrase to include in a Bill. What is the substance of "in a suitable manner" and what force does it have? Surely the sensible course would have been to give an undertaking that appropriate guidance would be given to those doing the job. The Minister for Health is an eminent lawyer and knows more than I about such matters, but I cannot believe that the amendment has any substance. It seems very peculiar.

Mr. Terry Davis: I, too, have reservations about the wording of the amendment. If the hon. Member for Newcastle upon Tyne, East (Mr. Thomas) looks at the Committee proceedings he will see that the words "in a suitable manner" are not those suggested in Committee.
The hon. Member for Abingdon (Mr. Benyon) tabled two amendments to which I and a number of other hon. Members added our names. The hon. Gentleman made it clear that he was referring to deaf people, and he referred to
methods as appropriate to individual patients".
He suggested that the mental welfare officer should, as far as practicable, employ oral, written or other methods, as appropriate to individual patients.
Deaf people are an important group, but special arrangements may also need to be made for some ethnic minorities. It is possible that there will be patients who do not speak English, and they will have to be communicated 

with in a different language. It will be essential for the language of the ethnic minority to be used by those communicating with such patients, and I am not sure that "in a suitable manner" would cover that group. It was our intention in Committee that those people, as well as the deaf, should be covered. I should be grateful for an assurance from the Minister that ethnic minorities' languages will be used when necessary.

Mr. Geoffrey Finsberg: My hon. Friend the Member for Abingdon (Mr. Benyon) moved his amendment after discussions with the British Deaf Association. The association has expressed itself content with our proposal, and I suggest to the House that the association is the expert in this matter. It seemed to us satisfactory that our proposed form of wording should be used. We shall be clarifying the situation, if it is thought necessary, in the guidance notes, which are becoming somewhat voluminous and which Ministers have said firmly they will check to make sure that they are in sensible and practical form.
I can see no reason why the important point that the hon. Member for Birmingham, Stechford (Mr. Davis) has raised about ethnic minorities should not be covered. I believe that "in a suitable manner" will cover that point.

Mr. Mike Thomas: I do not understand the legal meaning of "manner". The British Deaf Association is not the expert on that; presumably lawyers are the experts. "Manner" could be taken to mean politeness or impoliteness. Is the legal meaning what we mean?

Mr. Finsberg: My hon. and learned Friend the Minister of State, Home Office, has given the answer. The answer is "Yes''. It is interpreted widely. I am not a lawyer, but if any difficulty arises I shall write to the hon. Member for Newcastle upon Tyne, East (Mr. Thomas). However, I have no doubt that any sensible person will know exactly what is meant.

Amendment agreed to.
Amendment made: No. 16, in page 11, line 23, at end insert—

'(1C) It shall be the duty of a local social services authority, if so required by tile nearest relative of a patient residing in their area, to direct a mental welfare officer as soon as practicable to take the patient's case into consideration under subsection (1) of this section with a view to making an application for his admission to hospital; and if in any such case that officer decides not to make an application he shall inform the nearest relative of his reasons in writing.'.—[Mr Geoffrey Finsberg.]

Clause 18

POWER TO MAKE HOSPITAL ORDER

Amendment proposed: No. 96, in page 12, line 29, at end add—
'(6) After subsection (3) there shall be inserted—
(3A) The Secretary of State shall make regulations concerning the consultations which shall be undertaken by the managers of a hospital in considering the arrangements to be made for the admission of the offender to that hospital in the event of such an order being made by the court:. — [Mr. Terry Davis.]
Question put, That the amendment be made:—
The House divided: Ayes 26, Noes, 108.

Division No. 308]
[1.10 am


AYES


Bennett, Andrew(St'kp't N)
Davidson, Arthur


Campbell-Savours, Dale
Davis, Terry(B'ham. Stechf'd)


Cocks, Rt Hon M(B'stol S)
Dean, Joseph(Leeds West)


Cryer, Bob
Dormand, Jack






Eastham, Ken
Spearing, Nigel


Ennals, Rt Hon David
Thorne, Stan(Preston South)


Freeson, Rt Hon Reginald
Wainwright, E.(Dearne V)


George, Bruce
Weetch, Ken


Harrison, Rt Hon Walte
Welsh, Michael


Haynes, Frank
Winnick, David


Lofthouse, Geoffrey
Young, David(Bolton E)


Marshall, D(G'gow S'ton)



Morris, Rt Hon A.(W'shawe)
Tellers for the Ayes:


Price, C.(Lewisham W)
Mr. George Morton and


Skinner, Denni
Mr. Allen McKay.



NOES


Alexander, Richard
Maude, Rt Hon Sir Angus


Alison, Rt Hon Michael
Maxwell-Hyslop, Robin


Ancram, Michael
Mayhew, Patrick


Aspinwall, Jack
Mellor, David


Atkinson, David(B'm'th,E)
Meyer, Sir Anthony


Baker, Nicholas(N Dorset)
Mills, lain(Meriden)


Bendall, Vivian
Moate, Roger


Benyon, Thomas(A'don)
Morrison, Hon C.(Devizes)


Berry, Hon Anthony
Murphy, Christopher

Best, Keith
Neale, Gerrard


Biggs-Davison, Sir John
Needham, Richard


Blackburn, John
Neubert, Michael

Boscawen, Hon Robert
Newton, Tony


Bottomley, Peter(W'wich W)
Osborn, John


Bright, Graham
Page, John(Harrow, West)


Brinton, Tim
Page, Richard(SW Harts)


Brown, Michael(Brigg &amp; Sc'n)
Percival, Sir Ian


Bruce-Gardyne, John
Pitt, William Henry


Bulmer, Esmond
Price, Sir David(Eastleigh)


Carlisle, John(Luton West)
Proctor, K. Harvey


Chalker, Mrs. Lynda
Raison, Rt Hon Timothy


Chapman, Sydney
Rathbone, Tim


Clark, Hon A.(Plym'th, S'n)
Renton, Tim


Clarke, Kenneth(Rushcliffe)
Rhys Williams, Sir Brandon


Cockeram, Eric
Roberts, M.(Cardiff NW)


Cope, John
Taylor, Teddy(S'end E)


Costain, Sir Albert
Rossi, Hugh


Cranborne, Viscount
Rumbold, Mrs A. C. R.


Crouch, David
Shaw, Giles(Pudsey)


Dickens, Geoffrey
Shaw, Sir Michael(Scarb')


Dover, Denshore
Shepherd, Colin(Hereford)


Dunn, Robert(Dartford)
Smith, Tim(Beaconsfield)


Finsberg, Geoffrey
Speed, Keith


Garel-Jones, Tristan
Speller, Tony


Goodhart, Sir Philip
Spicer, Jim(West Dorset)


Goodhew, Sir Victor
Stevens, Martin


Griffiths, Peter Portsm'th N)
Stradling Thomas, J.


Grist, Ian
Temple-Morris, Peter


Hamilton, Hon A.
Thomas, Mike(Newcastle E)


Hampson, Dr Keith
Thompson, Donald


Heddle, John
Thorne, Neil(IIford South)


Henderson, Barry
Trippier, David


Hooson, Tom
van Straubenzee, Sir W.


Howells, Geraint
Viggers, Peter


Hunt, David(Wirral)
Waddington, David


Jessel, Toby
Waller, Gary


Jopling, Rt Hon Michael
Watson, John


Lester, Jim(Beeston)
Wells, Bowen


Lloyd, Peter(Fareham)
Wells, John(Maidstone)


Lyell, Nicholas
Wheeler, John


McCrindle, Robert
Wickenden, Keith


MacKay, John(Argyll)
Wolfson, Mark


McNair-Wilson, M.(N'bury)



Major, John
Tellers for the Noes:


Marlow, Antony
Mr. Peter Brooke and


Mather, Carol
Mr. Ian Lang.

Question accordingly negatived.

Clause 28

REMAND TO HOSPITAL FOR REPORT ON ACCUSED'S MENTAL CONDITION

Mr. Pitt: I beg to move amendment No. 18, in page 18, line 21, leave out from 'charged' to end of line 22 and insert
'or it is determined that he understands the nature and purpose of the proposed exercise by the court of the powers conferred by this section, and has consented to it.'.
I seek to amend an inconsistency. In part VI of the Bill the Government accept that for consent to be valid it must be given by a person who understands to what he is asked to consent. An understanding consent is required. The amendment provides for an understanding consent to apply in clause 28. A court might consider that it is not necessary for an accused person to understand. The amendment clears up an inconsistency. The concept has been debated fully by Lord Hooson and others in the House of Lords. I hope that the Minister will agree to repair the inconsistency.

Mr. Mike Thomas: I support the amendment. The clause makes it clear by the word "or" in line 20 that there can be no question of someone who has committed an act as charged being affected by the provision. If a person has not committed an act as charged it is inappropriate for him to be remanded without consent and without understanding what is involved. If a person cannot understand and has committed an offence, other parts of the legislation can be applied. There is force in the argument about inconsistency and in the suggestion that the courts might believe that we had reason to leave in the inconsistency.

Mr. Mayhew: The hon. Member for Croydon, North-West (Mr. Pitt) spoke with commendable brevity. His intention is to tighten the existing wording to ensure that a defendant does not consent to a remand in hospital in ignorance of what that entails. The hon. Gentleman's amendment adds nothing to the sense of the existing words. The concept of consent already carries with it the necessity that the person giving consent shall be capable of understanding the situation and have sufficient information on which to make up his mind.
Magistrates' courts are well used to dealing with issues of this type and it is neither necessary nor helpful to spell the matter out in the way proposed in the amendment. Whatever may be the position in relation to decisions made in hospital, I would suggest that in the context of proceedings in court the House can be confident that steps would be taken to ensure that the hon. Gentleman's requirements are indeed met. I understand his point, but I do not believe it supports his contention that a change is necessary. I wish to make it clear, however, that consent in clause 28 is not consent to treatment, because clause 40(1)(b)makes it clear that a person detained under clause 28 is not subject to the provisions about consent to treatment in part 6 of the Bill, so that the ordinary principles governing treatment would apply.
Therefore, the hon. Gentleman would be giving no hostages to fortune by agreeing to withdraw the amendment. In the light of what I have been able to say, I invite him to withdraw the amendment. There is no danger here and there is no reason for what he has proposed.

Mr. Pitt: Having listened to what the Minister had to say, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Mayhew: I beg to move amendment No. 84, in page 19, line 15 leave out from 'if' to end of line 18 and insert
'it appears to the court that it is appropriate to do so'.

Mr. Deputy Speaker: With this it will be convenient to take Government amendments Nos. 85 to 89.

Mr. Mayhew: Subsection (8) of clauses 28 and 29 was inserted in the Bill by an amendment in Committee moved by the hon. Member for Newcastle upon Tyne, East (Mr. Thomas). The present amendments leave the effects of the new subsection exactly as they were intended by the hon. Member. Our purpose here is simply to rectify some minor defects of drafting. There was for example an inconsistency between the provisions of subsection (8) that the court could end the remand on the basis of the independent medical report and the provisions of subsection (7), which state that the remand can be terminated only on the basis of evidence from the doctor responsible for making the report required by the court. Amendments Nos. 84 and 86 rectify this inconsistency and provide that the court may terminate the remand if it appears appropriate to it to do so. Amendment No. 85 makes it clear that the right expressed in subsection (8) can be exercised only at the accused person's own expense. The other changes to the drafting of subsection (8) made by this amendment are to ensure consistency with other parts of the Bill.

Mr. Mike Thomas: I accept what the Minister says, although he has slid into the provision the clarification that the independent report shall be at the expense of the patient. I am not sure whether that was entirely the intention of the Committee, but one can trust the Government not to leave such a matter of public expenditure in doubt. Nevertheless, I accept all that he says about his intentions and ask the House to support the amendment.

Amendment agreed to.
Amendments made: No. 85, in page 19, line 20 leave out from 'obtain' to 'chosen' in line 21 and insert 
'at his own expense an independent report on his mental condition from a medical practitioner'.
No. 86, in page 19, line 23 leave out 'ended' and insert
'terminated under subsection (7) above'.—[ Mr. Kenneth Clarke.]

Clause 29

REMAND OF ACCUSED PERSON TO HOSPITAL FOR TREATMENT

Amendments made: No. 87, in page 20, line 33, leave out from 'if' to end of line 38 and insert—
appears to the court that it is appropriate to do so'.
No. 88, in page 20, line 40, leave out from 'obtain' to 'chosen' in line 41 and insert—
'at his own expense an independent report on his mental condition from a medical practitioner'.
No. 89, in page 20, line 42, leave out 'ended' and insert—
'terminated under subsection (7) above'.—[ Mr. Kenneth Clarke.]

Clause 37

POWERS AND PROCEDURE OF TRIBUNALS

Mr. Kenneth Clarke: I beg to move amendment No. 21 in page 27, line 45, at end insert
'(6) Any funct:ons conferred on the chairman of a Mental Health Review Tribunal by rules under section 124 of the principal Act may, if for any reason he is unable to act, be exercised by another member of that Tribunal appointed by him or the purpose.'.
The amendment corrects an omission to which attention was drawn in Committee by my hon. Friend the Member for Beeston (Mr. Lester), who played a constructive role throughout the proceedings and was the author of a number of changes in the Bill. He pointed out that clause 37(5) extends the Lord Chancellor's power to make rules for mental health review tribunals to enable him to provide by rule for certain of the tribunal's functions to be performed by the chairtnar. of the tribunal. This means that the regional chairman may exercise some of the tribunal's functions on his own without summoning all his colleagues on every occasion, but it is important to bear in mind that the functions that can be delegated are limited to those relating to preliminary and incidental matters. As the Bill stood, it would not have been possible to provide for the appointment of a deputy to stand in for the chairman and exercise any of the functions that the rules may give him. This could have given rise to difficulties if, for example, the chairman became ill or was abroad. The amendment would provide more flexibility and would allow a deputy to be appointed for those purposes.
1.30 am
I have read the Hansard report of the proceedings in Committee. The relevant debate took place on one of the days when I was not present, but I have noted the matters raised in it. It was when my hon. Friend's proposals were put forward that the issue of section 25 patients was also considered. It was suggested by my hon. Friend and others that the chairman might be able to determine by himself, and similarly a deputy, an application from a section 25 patient seeking to challenge his detention. That was never the Government's intention, and in honouring our undertaking we have met the narrow point that the amendment that was tabled by my hon. Friend in Committee was seeking to meet.
I hasten to acid that the Government appreciate that there is considerable concern about the effect of the new rules on section 25 patients. There is some anxiety that by giving new rights to these patients we may be creating fresh pressures for them when they are under some strain when first admitted to a hospital. We appreciate that sometimes they experience considerable distress. There has been considerable correspondence between Ministers and a number of hon. Members, including my hon. Friend the Member for Beeston. We are anxious to make it clear that we realise that when patients are first admitted to a hospital against their will they may experience considerable distress. In their interests and in those of their relatives this matter has to be handled with some care and sensitivity.
The way in which patients are informed of their rights has to be handled with care. Obviously it is important to choose the right moment to tell patients about their rights, including those to a tribunal hearing. I trust that we can


rely on good professional staff to choose the right moment, but the guidance notes will enable staff to judge the moment properly.
We are considering also the rules of the tribunals in dealing with section 25 cases. The general power to make rules is given to the Lord Chancellor by section 124 of the 1959 Act. It is obvious that it is necessary to produce a new set of rules to cover section 25 cases. The Lord Chancellor will be consulted on the rules, but rules will be produced in an endeavour to make the hearings as informal and as relaxed as possible. There will be some limitation on the ability to be represented, for example, at these proceedings. The idea is not to have too formal or formidable a tribunal but to provide a fairly rapid means by which the tribunal will be able to consider the evidence upon which the patient was admitted, hear what the patient himself, or anybody on his behalf, wants to say about it, come to a quick and fairly informal judgment and ensure that nothing improper has occurred.
We shall try to ensure that the system works without damage to the interests of patients or those of their relatives, first by the guidance notes and, secondly, by the new rules which the Lord Chancellor proposes to make. We could not delegate the right to the chairman or to any deputy to conduct the full hearing in a section 25 case. That would be to take away the judicial quality from the review which the tribunal has to retain.

Mr. Terry Davis: The Minister has referred to the correspondence which has taken place. I imagine that many hon. Members have received letters on this issue. Will he make it clear that it is not the Government's intention, through the rules, to reduce the rights of section 25 patients to appeal against their detention?

Mr. Clarke: We are committed to providing patients with these rights. It was the wish of the clear majority of the Committee and the Government's wish that these rights should be given. However, we appreciate that there is genuine concern about possible unintended harmful effects on patients and their families if the matter is handled other than sensitively when the patient is first admitted or if the tribunal proceedings are conducted in such a legalistic and formidable way that they add to the distress and confusion of the patient.
Those are the points that we intend to cover in the guidance notes and in the Lord Chancellor's rules, but we have no intention of removing the legal protection that the Bill gives to section 25 patients. That matter was much canvassed in discussion on the amendment in Committee. I think that we can deal with it without legislating on section 25 cases, but on the amendment there is a narrow, but important, point. Had the amendment not been tabled, the value of clause 37(5) would have been much reduced.

Mr. Jim Lester: I welcome the contribution by the Minister on this matter because it concerned the Committee very much. It concerns many hon. Members as they have had letters from constituents who have children or relatives who suffer from schizophrenia. There is a fear, put forward by the National Schizophrenia Fellowship, that this was the worst element of the Bill—that people who, under section 25, had been able to get a relative into hospital, would have to go through the

whole trauma again because within 14 days they have a right of appeal. It seems that that was an unnecessary form of protection.
The Committee refused to take away the right of appeal. I supported the fact that anyone who was to have his liberty taken away, even for 28 days, should have the right of appeal. It helps such people who are in hospital to know that they have that right, and gives dignity to the patient, but it is important that the fears of relatives who are deeply concerned about the trauma of getting someone into hospital, who could be "released", so to speak, immediately afterwards, are allayed.
The amendment is good and we accept it, but it does not follow from what we said in Committee—it is different. As a result, I went back to the Department because I was not satisfied. We had considerable discussion. I had a letter from my hon. Friend the Under-Secretary of State, which states that the Lord Chancellor's committee will draft a different set of regulations for section 25 patients and that we shall have the chance to see them before they are finalised to make sure that the real fears of the people who concern us and many of our constituents will be taken care of. The amendment is trying to pick a narrow line between the protection of the relatives and the rights of the patients and a civilised and reasonable way of exercising those rights. We are still watching and waiting to see those regulations and make sure that they fulfil the wishes of the Committee and the House.

Amendment agreed to.

Clause 41

LIMITATION OF PREMIUM INCOME

Mr. Pitt: I beg to move amendment No. 23, in page 29, line 30, leave out subsection (1) and insert—
(1)(a)This section applies to the following forms of medical treatment for mental disorder (including diagnostic procedures)—

(i) any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue;
(ii) any treatment which is not fully established; and
(iii) such other forms of medical treatment for medical disorder (including diagnostic procedures) as may be specified for the purposes of this section by regulations made by the Secretary of State;
(b)A treatment shall be deemed established for the purposes of this section if reasonable standards of safety and efficacy have been confirmed for that treatment by clinical research.'

Mr. Deputy Speaker: With this it will be convenient to take Government amendments Nos. 24 and 28.

Mr. Pitt: Any new treatment from time to time will be so new that it will not have been incorporated into regulations or the code of conduct. The amendment provides that experimental work shall not be carried out on detained patients without their consent. The possibility of people being used as guinea pigs is especially frightening with regard to patients detained under the Mental Health Act. They need special safeguards to ensure that they can weigh up the crucial and complicated possibilities and the pros and cons of new treatment. By inserting the amendment, we shall be able to ensure that they can make a realistic assessment of the risks and possible benefits of such treatment before embarking on it.
I have asked to be provided with examples of treatments that are not fully established and which have been subsequently proved to be useless. The reading of the list adds weight to my remarks. For example, insulin coma treatment was used for 11 years without validation. There is the use of ECT for conditions other than depression. We heard a considerable amount about ECT on Second Reading. We have continued to hear from time to time of the unpleasant side effects of ECT. We need say no more about pre-frontal leucotomies.
Again I do not wish to detain the House longer than necessary. I am minded to withdraw the amendment in favour of Government amendment No. 24, which more concisely covers the same point, but I wish first to hear the Minister.

Mr. Terry Davis: Government amendment No. 24 meets the undertaking given in Committee in response to an amendment tabled by the hon. Member for Basildon (Mr. Proctor) and myself to specify the psychosurgery in clause 41. It is the most serious treatment. As originally drafted the Bill specified other treatments in the lower category of clause 42 but nothing at all in clause 41.
I am a little anxious about Government amendment No. 28, which deletes the reference to diagnostic procedures in clause 42. In Committee the Minister said, of an amendment to clause 41, that the reference was unnecessary. But the reference was in the Government's draft of the clauses. There has clearly been a change of opinion. All previous drafts specifically included diagnostic procedure in the definitions of treatment about which anxiety had been expressed. We would like to be sure that clauses 41 and 42 will cover diagnostic procedures even if the specific phrase is not included in the Bill.

Mr. Geoffrey Finsberg: The commitment given to my hon. Friend the Member for Basildon (Mr. Proctor) and the hon. Member for Birmingham, Stechford (Mr. Davis) is contained in Government amendment No. 24. It was always our intention to put it on the face of the Bill that psychosurgery must be performed on a detained patient only with his informed consent and a second opinion.
The reason for Government amendment No. 28 is simple. Parliamentary counsel advise that there is no doubt that diagnostic procedures are forms of treatment, so the words are superfluous. As the hon. Gentleman will know, parliamentary counsel's wisdom is unchallengeable on these matters. I could give an even longer explanation but it would amount to the same thing.

Mr. Terry Davis: I am glad to have the assurance that diagnostic procedures are included. But, to revert to amendment No. 24, if it was always the Government's intention that psychosurgery should be specified on the face of the Bill, why was it omitted from what was called new clause 16?

Mr. Finsberg: It was always our intention from the time that we took the decision on psychosurgery in Committee to see whether it should be put on the face of the Bill. There is nothing between us.
The hon. Member for Croydon, North-West (Mr. Pitt) says that he is minded to seek to withdraw amendment No. 23. One cannot satisfactorily talk about reasonable standards of safety and efficacy being confirmed. Who is to say what are reasonable standards and when they have

been confirmed? I am sure that every psychiatrist would say that he would propose a treatment only if he were satisfied as to its safety and efficacy in accordance with accepted clinical practice.
1.45 am
The Government believe that the code of practice will be the most flexible and responsive means of guidance on changes of medical practices. As the hon. Gentleman said, old treatments become discredited and new treatments are introduced. When the mental Health Act Commission prepares and revises the code in consultation with relevant bodies, it will reflect the current state of medical knowledge. I think that that is what the hon Gentleman is trying to achieve. That can best be done through amendment No. 24, which covers his points. I hope that he will feel able to withdraw his amendment.

Mr. Pitt: In view of the Minister's remarks, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Amendment made: No. 24, in page 29, line 30, leave out
'such forms of medical treatment for mental disorder' and insert'the following forms of medical treatment for mental disorder—

(a)any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue; and
(b)such other forms of treatmene—[ Mr. Geoffrey Finsberg]

Mr. Pitt: I beg to move amendment No. 25, in page 29, line 40, after 'practitioners)' , insert
'and the nearest relative of the patient (if any)'.

Mr. Deputy Speaker: With this, we may take the following amendments:
No. 31, in clause 42, page 30, line 33, leave out 'has' and insert
'and one person appointed for the purposes of this paragraph by the Secretary of State not being a medical practitioner) have'.
No. 32, in page 30, line 33, leave out 'has' and insert
'and the nearest relative of the patient (if any) have'.
No. 33, in page 30, line 33, leave out 'has' and insert
'one person appointed for the purposes of this paragraph by the Secretary of State (not being a medical practitioner) and the nearest relative of the patient (if any) have'.
No. 35, in page 30, line 37, leave out 'has' and insert
'and one person appointed for the purposes of this paragraph by the Secretary of State (not being a medical practitioner) have'.
No. 36, in page 30, line 37, leave out 'has' and insert
'and the nearest relative of the patient (if any) have'.
No. 37, in page 30, line 37, leave out 'has' and insert
'one person appointed for the purposes of this paragraph by the Secretary of State (not being a medical practitioner) and the nearest relative of the patient (if any) have '.

Mr. Pitt: I am tempted to say that this is positively my last appearance. 1 shall not detain the House, as I do not intend to speak to each amendment. Each amendment puts forward the concept of the nearest relative becoming part of the decision-making process on whether the patient is capable of understanding. They would give the nearest relative a role in the decision whether a person is capable of giving consent. They add the nearest relative to the panel of two wise people who have to decide such questions.
A relative has a far more intimate concern for the patient. Without doubt, he will be more conversant with his quirks and the ramifications of his illness. Thai is especially important in psychiatric cases. If one lives close to a person day in day out, one will be aware of his quirks


and the ramifications of his illness. Although medically and clinically qualified, doctors will not, by the very nature of their contact with the patient, be so aware of his idiosyncrasies.
There is a counter argument, that the relative may not want such responsibility. They would not be compelled to take responsibility. I do not wish anyone to infer from either the amendment or my remarks that a relative will be compelled to meet the two wise people and make a decision. It is a voluntary act—a permissive piece of legislation that will permit a concerned relative, who wants the best for the patient, to be involved.
Such an option allows a relative to make a significant input to the treatment of the patient. He can give an important and valuable assessment to the medical practitioners when they assess the degree of mental illness being suffered by the patient.

Mr. Geoffrey Finsberg: The House will have sympathy with the hon. Gentleman's proposal that a patient's family should be included in decisions about treatment. In many cases that is part of the theraputic process. Both sides of the Special Standing Committee wished to ensure that relatives were consulted and informed about treatment and other statutory provisions. My hon. Friend the Member for Abingdon (Mr. Benyon) successfully moved a new clause which ensures that relatives are told when a detained patient is about to be discharged. We also promised to refer other questions to the commission so that in the code of practice it could include advice on consultation with the patient's family.
It is important that consultation takes place, especially on treatments of special concern covered by clause 41. It would usually be desirable for the independent psychiatrist, or the three people who assess whether the patient has given informed consent, to meet the patient's family to see what they think, because as the hon. Gentleman said, the family should be in the best position to know about the patient. It may well be able to explain his worries and it may have its own views about what is best for him. However, it would be wrong for the relative to be involved formally in decisions on treatment. There may well be tensions and resentments within the family which could be aggravated if the patient felt that his relative had either forced him to have treatment or withheld treatment from him.
In most cases, the relatives will find the decision a difficult and painful one, and probably would not welcome the responsibility that these amendments would give them. There would probably be disagreement within the family. After all, the legal "nearest relative" may not be the only person who is close to the patient and may not always be the person who is most closely involved. It would be harmful to write the nearest relative into the consent procedures, but I believe that the relatives should normally be consulted before treatment is given without the patient's consent. I shall draw that point to the attention of the commission so that it can consider it for its code of practice.
The other suggestion is to involve an independent nonmedical person as well as the independent psychiatrist. I do not think that would be helpful. The patient himself will be signing something to show that he has consented, and his responsible medical officer will sign a certificate to

confirm his view that the patient understands what is involved. After all, we are talking about the ordinary doctor-patient relationship, where the patient agrees to the treatment that his doctor offers to him. The treatments will be fairly routine. We have made other arrangements for treatments of special concern, such as psycho-surgery. Introducing a third person to check on the patient's consent for the less serious forms of treatment would make the procedures unduly cumbersome.
Amendment No. 35 raises a different point, and suggests that an independent layman should join the independent psychiatrist in deciding whether treatment should be given. Treatment would not be given unless they both agreed. It is a medical question whether the patient needs a particular treatment or plan of treatment, and we should not accept an amendment that would make the independent psychiatrist subject to a lay veto. I do not believe that that is what the hon. Gentleman wants.
We have required the psychiatrist to consult the professional staff who have been caring for the patient, but the final responsibility for decisions on treatment must surely be a medical one.
I hope that the hon. Gentleman will withdraw his amendments in view of the explanations I have given.

Mr. Pitt: In view of the Minister's explanations, especially his remarks about the code of practice, I shall seek the leave of the House to withdraw the amendment.
The idea behind the later amendments was to introduce the "next friend" principle into the legislation. I shall not delay the House further, and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Amendment made: No. 27, in page 30, line 8, at end insert—
'(3) Before giving a certificate under subsection (2)(b)above the medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient's medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a medical practitioner.'.—[ Mr Geoffrey Finsberg.]

Clause 42

TREATMENT REQUIRING CONSENT OR A SECOND OPINION

No. 28, in page 30, line 14, leave out '(including diagnostic procedures)'.—[ Mr Geoffrey Finsberg.]

Clause 44

WITHDRAWAL OF CONSENT

Mr. Geoffrey Finsberg: I beg to move amendment No. 40, in page 31, line 16, leave out from 'and' to 'those' in line 17.
I could say that this was a major amendment. It is, in fact, a drafting amendment to delete superfluous words.

Amendment agreed to.

Clause 45

URGENT TREATMENT

Amendment made: No. 41, in page 31, line 38, leave out 'Section 44' and insert
'Sections 44 and (Review of treatment) (2)'.—[ Mr Geoffrey Finsberg.]

Clause 47

AFTER-CARE

Mr. Terry Davis: I beg to move amendment No. 99, in page 32, line 16, after 'Act,' insert
'or having been transferred to a hospital in pursuance of a transfer direction made under Section 72 or 73 of the principal Act,'.
The amendment relates to clause 47, which has achieved fame in our deliberations because it was added to the Bill in the other place. I am not sure whether it was the only change made in the other place. It was certainly the most significant change and it was made against the Government's wishes. It was a clause about which we had some fears. The Government were tardy in giving assurances that they do not intend to seek the removal of this most important clause about after-care.
I appreciate that the Government maintain that clause 47 is unnecessary. However, it is a clause which is dear to the hearts of all Labour Members, and, I believe, to some Conservative Members. It provides that, if someone has been either detained under section 26 of the Mental Health Act 1959 or admitted to a hospital as a result of an order by a court under section 60 of the Mental Health Act 1959 in the circumstances that we were discussing earlier in relation to new clause 3, there would be a duty on the district health authority and the local social services department, in co-operation with voluntary agencies, to provide an after-care service for that person on his discharge from the hospital.
The unanimous view of the Opposition is that that clause is important because there have been grounds for criticism of the after-care services that have been provided in the past for people who have been discharged from hospital. It was an issue that was mentioned on Second Reading and several times in Committee. As has been said, it is nonsense for people to be discharged from hospital only to find that they are sleeping under bushes in the hospital grounds because they do not have anywhere else to go. There is a need for much more to be done in terms of care after people have been discharged from hospital.
As it stands, the clause refers only to people who have been either detained under section 26 or admitted to hospital as a result of a court order under section 60 of the principal Act. Amendment No. 99 would extend the provisions so that there would be a duty to provide aftercare for people who have been transferred to hospital from prison. That would include cases under sections 72 and 73 of the principal Act. There seems no good reason for leaving out patients who happen to have been in prison before they were admitted to hospital. The only difference would be between those who are admitted direct to hospitals under section 60 of the Mental Health Act 1959 and those who go into prison first and it takes time for places to be found for them in hospitals. Those people are covered by sections 72 and 73.
The Minister of State, Home Office, told us that he took great pleasure—indeed, we all do—in the number of people who have been transferred from prison to hospital because they need treatment which can be provided only in hospital, which is where they should be rather than in prison. Those people are also in need of care after their discharge from hospital.
As we understand it, clause 47 would not cover those people at the moment. We believe that there is no logical

reason for that. We cannot understand why there was no reference to sections 72 and 73 in the clause as it was added to the Bill in the other place. Therefore, amendment No. 99 would include those two sections. I hope that the Government will accept the amendment.
I know that my hon. Friend the Member for Ipswich (Mr. Weetch) is anxious to contribute to our discussion on this matter, because he has a serious constituency concern.

2 am

Mr. Ken Weetch: I strongly support amendment No. 99. I do so for compelling constituency reasons. I have followed the argument on clause 47, which is the first provision in part VII and which concerns aftercare. The amendment refers to section 72 of the parent Act, the Mental Health Act 1959. Section 72 concerns
Removal to hospital of persons serving sentences of imprisonment.
I want to add
for very violent crime".
Section 72(1)(a)of the parent Act states:
that the said person is suffering from mental illness, psychopathic disorder, subnormality or severe subnormality".
I have followed the debates throughout. I followed the debate in the other place. I followed the Committee proceedings quite closely and I have read every word said on this matter. I was pleased to hear my hon. Friend the Member for Birmingham, Stechford (Mr. Davis) speak from the Oppos lion Front Bench. It is important that I should support the amendment because in July 1980. the son and daughter-in-law of two of my constituents were brutally murdered by someone with a history of chronic mental disturbance.
The details of the murder would make many people physically sick. Suffice it to say that when the judge passed sentence it was discribed as quite horrific. The criminal was described in the trial and elsewhere as schizophrenic and psychopathic, with a history of escalating, unpredictable and quite violent crime. He was convicted of manslaughter with diminished responsibility and sent to Rampton.
That conviction was the climax to a very long catalogue of crime. The matter involved the hon. Member for Brentwood and Ongar (Mr. McCrindle) more heavily than me, because the crime was committed in his constituency. However, it involved the son and daughter-in-law of two of my constituents. Those constituents live in the next road to me. I pay great tribute to the hon. Gentleman, who is in his place, for the way in which he took up the case and for his unremitting attempts to get satisfaction over matters relating to this issue. However, for the reasons that I have given, I am involved.
The circumstances of the case and the issues that arise are relevant to the clause and to the amendment. The principal points at issue are three in number. First, I am concerned about the relevance of a very violent criminal record that was related to a history of chronic mental disturbance. Given what happened, the 1959 Act proved ineffective. I am arguing in the hope that steps will be taken to ensure that that will not happen again.
Secondly, I am concerned about the whole question of after-care in the special case of violent criminals, particularly those with a history of mental disturbance, as well as the question of what happens after release from prison. Thirdly, and just as importantly, I am concerned


about the safety of the community. All this is critically at issue, and is related to the amendment with particular reference to the inclusion of section 72 cases.

Mr. Kenneth Clarke: It may assist the hon. Gentleman in arguing his case if he knows, before he goes into the general principles underlying the argument, that I propose to accept the amendment on behalf of the Government. The hon. Gentleman is thus pushing at an open door, and may not need to push as forcefully as he might have been intending.

Mr. Weetch: I am pleased to hear that. I did not expect a victory that easily. I thank the Minister and accept my victory gratefully. I shall cut short what I have to say, but there are one or two other matters that I must put on record.
Professional judgments were involved in this case, as to whether a person should be let out into the community when there was a long history of violent crime. We all know the nature of professional judgments. A doctor can take the wrong leg off, and provided that one can argue that it was done in professional good faith, one is through the door. I have always been a little sceptical of arguments such as that.
The plain facts are these. From 1957 until 1981, a period of 25 years, the person who was convicted of this manslaughter had a criminal record of considerable length, that included everything on the calendar of crimes. There were a number of convictions for robbery with violence, malicious and malevolent knifings, which culminated in the horrific manslaughter I have described.
In 1967, the man stabbed a fellow prisoner and was transferred to Broadmoor. In 1970 there was a conviction for breaking and entering with assault. In 1974, he stabbed his wife in the back, and in 1977 there was a conviction before Lewes crown court for malicious wounding, where a knife was plunged to a depth of 10 inches, so that it disappeared into the victim's chest cavity. What I wanted to know, and what I still want to know, is how such a person as this, with a record of unpredictable violence, found his way into the community, after repeated periods of examination and treatment, so that that murder was committed. The crucial question, which I have had in my mind for a long time, is how the legislation before the House tightens the regulations, so that risks such as these, which culminated in so much grief, could be avoided.
The facts are significant. In connection with the first episode of violence, the offender was transferred—

Mr. Deputy Speaker: Order. It is not in order for the hon. Member to argue a specific case in a Bill of this kind. He must deal with the amendment.

Mr. Weetch: I shall attend to your guidance, Mr. Deputy Speaker. I was trying to show that here was a long history of violence, despite which, and despite the pile of evidence as big as a haystack, a decision was made to release this man into the community without provision of after-care.
The reason why I wish section 72 to be included in the framework of the Bill is that in this case, because there was no after-care, and this person had no one to report to and no treatment laid down for him, he was a walking murderer waiting for something to happen, and it did. That is very serious. This legislation should be tightened as far 

as possible to see that the community is protected. In emphasising the framework of after-care and the professional decisions associated with it, I hope to persuade the House that I make a serious point. I have sought to recite some details because this was one of the most horrific stabbing cases in the history of crime this century. That is its importance.
There was a repetition of events. When discharged, people, on occasion, wander around the community living under hedges, without treatment or supervision. That is when trouble occurs. The matter needs to be critically examined. I remain to be convinced—I shall be pleased to hear what the Minister has to say—that the House has achieved everything in the Bill as it stands to see that such situations do not recur. It is impossible to predict human nature but the fact that these crimes were unpredictable should have made everyone concerned to see that no chances were taken. When a catalogue of crime is part and parcel of a history associated with mental disturbance, the area for professional discretion should be very limited and the framework should be solid. To this end, I support the amendment and I am glad that it will be accepted.

Mr. Kenneth Clarke: The constituency case raised by the hon. Member for Ipswich (Mr. Weetch) is obviously distressing. The hon. Gentleman feels strongly about it. All hon. Members are appalled to hear that a patient with a history of mental disturbance and violent behaviour was released and committed an appalling crime against two of the hon. Gentleman's constituents in the constituency of my hon. Friend the Member for Brentwood and Ongar (Mr. McCrindle). Without further details, it is impossible for me to discuss the case of a particular individual. On the issue of Government responsibility, the sentencing decisions of the court are not subject to political review. I also suspect that the powers of the court and the treatment of offenders are matters for my right hon. Friend the Home Secretary rather than for my right hon. Friend the Secretary of State for Social Services and myself.
Nevertheless, it is plainly right, when discussing this Bill, that the hon. Member for Ipswich and everyone else should be reassured that the Mental Health Acts contain provisions, when used, to protect the public against the most dangerous and violent form of offender. The main protection for the public is provided by section 60 of the Mental Health Act 1959 which empowers a court to make a hospital order and the doctors to decide when the man is treated and when he can be released. Section 65 states that if
it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section".
Among the restrictions in the original Act of 1959 was that requiring that he should not be discharged without the consent of the Home Secretary as the Secretary of State exercising the powers. That is modified in the Bill, though not by the amendment. Clause 27 makes amendments to the law on restriction orders and restriction directions and enables mental health review tribunals to direct the discharge of patients subject to a section 65 order if they are satisfied, on the evidence, that they should be discharged.


2.15 am
Both measures, even as they are to be amended, mean that when someone who is plainly mentally ill and potentially dangerous to the public appears before the courts, they have adequate powers not only to make a hospital order, but to put restrictions on his discharge. The patient will not be discharged solely at the discretion of the doctors. Because the doctors have such difficult decisions to make in these cases where the risks are so great, a discharge has to be ordered by the Home Secretary or by the mental health review tribunals. That means that the Home Secretary and his advisers will assess and weigh up the evidence of the psychiatrists before they direct discharge or the mental health review tribunals will hear all the evidence and assess the psychiatric evidence before discharging such a patient.
We are giving that new power to the tribunals and because it is such a significant power there will be new appointments as chairmen of the tribunals. Senior judges—High Court judges with experience of the most serious criminal cases—will normally chair hearings when applications are made for the release of a restricted patient.

Mr. R. A. McCrindle: I understand all that my hon. and learned Friend has said and I appreciate that he does not wish to concentrate on the one case, but in the light of what he has said about the provisions of mental health legislation, does he not find it surprising that an individual with the record that the hon. Member for Ipswich (Mr. Weetch) has accurately outlined should ever have found himself back in the community?

Mr. Clarke: Everyone who heard the description of the case will find that surprising, but in defence of those involved—I have not identified the individuals and the case does not ring any bells in my memory—one must say that before coming to a considered judgment one would need to know the full particulars of the case and everything that was before the courts and the doctors who took the decisions. Secondly, these are desperately difficult decisions to make. In the immediate aftermath of such a crime it is tempting to argue that anyone with such a history should be locked up and the key thrown away, but speaker after speaker during proceedings on the Bill has argued for a liberalisation of the law because the civil liberties of those who are detained are not adequately protected, and it has been suggested that the Government are not going far enough in making sure that decisions to detain are reviewed properly and assessed by independent people.
I believe that we have struck the right balance. When appalling cases occur and homicidal, mentally deranged people who are a danger to the public are locked up in Broadmoor or Rampton, it can be desperately difficult to decide whether to release them. A young man may appear to be cured after a number of years and one cannot say that he should be confined for his natural life when no one can find any grounds for saying that he constitutes a danger. Yet one knows from experience that patients who have satisfied every psychiatrist that they are safe and, under the old law, have satisfied the Home Secretary that the psychiatrists are right, have been released and have committed the most appalling crimes. It will be no consolation to hon. Members or to the relatives of those who were killed in this case, but the number of cases where dreadful errors turn out to have been made is tiny. It is also a matter on which certainty of judgment is almost 

impossible, even by the most skilled psychiatrists, tribunal, Minister or officials. The law exists to provide safeguards, but they can never be perfect. In this Bill we have not weakened those safeguards.
The case of dangerous mentally ill offenders brings me back to the direct question asked by the hon. Member for Ipswich. Those offenders will not be released if the court has made a restriction order on the judgment of the professional psychiatrists alone. It would not be fair even to the psychiatrists to leave the matter to them alone. It would require the consent of the Home Secretary or the tribunal.

Mr. McCrindle: I accept all that the Minister said, and particularly the fact that, happily, the number of such people who are unleashed on society is very small, but does he now intend to turn his attention to the question asked by the hon. Member for Ipswich (Mr. Weetch) about after-care, or some continuing check on individuals who are allowed back into the community, so that some reassurance may be given to the public that such people are not simply released and that is the end of the story? That point put by the hon. Member for Ipswich seems almost as important in my view as the one to which the Minister has just addressed himself.

Mr. Clarke: I accept that, and the amendment that we are discussing is about after-care.
To answer my hon. Friend's question, I turn to the Bill and clause 47. There has been a continuing debate about whether clause 47 is strictly necessary. In the Government's opinion, satisfactory statutory duties are already laid on local authorities to provide after-care for discharged mental patients. Those statutory duties exist, are satisfactory, and certainly extend to discharged section 65 patients who represent a particularly important problem.
In the House of Lords, clause 47 was driven into the Bill, and there it remains. The Government's only objection to it in the first place was that it was unnecessary. It duplicates the existing statutory duties. If the House feels strongly that it wants belt and braces, there is no compelling ground for arguing against clause 47, in that it merely duplicates an existing statutory provision, and we all agree that we want the statutory duty to exist anyway. We have accepted clause 47, and we accept this amendment because this category of patients—patients transferred to hospital under section 72 or section 73--are indistinguishable in principle from, for instance, section 60 patients. This, therefore, corrects a drafting anomaly and should be added.
I want to make it clear that for restricted patients under section 65 or section 74 of the original Act—I imagine that that is the category of patients that are involved in the case that was given--there is provision for conditional discharge, which enables a discharge to be made, subject to conditions set down by the Home Secretary. It means that a patient is subject to recall to hospital if he does riot make satisfactory progress when he is first released. While the patient is conditionally discharged in that way, supervision is provided so that someone is aware if things are going wrong, and the patient can be recalled to hospital.
As I have said, I am happy to accept the amendment. It strengthens clause 47. If the House feels that it wants doubly to underline the statutory duties on local


authorities, so be it. I shall not repeat the arguments that I used in Committee, when I said that the problem with after-care is not the statutory duty, but resources. Changing the law does not provide resources. If local authorities are endeavouring to meet a statutory duty within the resources that are available to them, they will not find it easier to discharge that duty if the duty is put on them twice and there is no change in the resources. The problem arises because of resources and there will be more appropriate occasions to debate that matter. I accept amendment No. 99.

Amendment agreed to.

Clause 49

CODE OF PRACTICE

Mr. Kenneth Clarke: I beg to move amendment No. 47, in page 35, line 2, after 'practitioner' insert
'to a patient detained under the principal Act or this Act'.

Mr. Deputy Speaker: With this, it will be convenient to take Government amendments Nos. 49 to 51, amendment No. 52, and Government amendments Nos. 53 to 56, 58, 59, 61 and 63.

Mr. Clarke: The amendments deal with the Mental Health Act Commission and its functions. Although some doubts were expressed on Second Reading, it is now accepted on both sides of the House that the Mental Health Act Commission proposed by the Government is a valuable new body that will act as a watchdog for detained patients and, as a result of amendments in Committee, will have potential responsibilities for informal patients. It will be a watchdog for the treatment of psychiatric patients.
The work, statutory powers and duties of the commission were discussed extensively in Committee and, as with other features of the Bill, were improved steadily in the Committee. Most of the amendments honour commitments given in Committee to hon. Members and they are designed to widen the commission's duties, extend its powers and make it more accountable. The greatest extension agreed in Committee was to enable the commission at a future date to take on responsibilities for informal patients as well as for detained patients. That point was pressed especially by my hon. Friend the Member for Beeston (Mr. Lester).
Amendments Nos. 47, 61 and 63 make some drafting changes to the amendments agreed in Committee, but new clause 7, which was moved by the hon. Member for Birmingham, Stechford (Mr. Davis) this evening and accepted by the Government, flatly contradicts amendment No. 47. In due course, I shall seek leave to withdraw amendment No. 47. If I do not, I assume that the hon. Member for Stechford will leap to his feet and say that I am snatching away with one hand what I conceded to him with the other. Amendments Nos. 61 and 63 make drafting changes to the amendment agreed in Committee—that the commission should at some time be empowered to take on responsibilities for informal as well as for detained patients.
I do not wish to underline at length what I said in Committee to my hon. Friend and to others. The amendment provides the commission with a statutory power, but we do not expect it to exercise that power when 

it is set up. The first priority of the commission must be to concentrate on the special problems of detained patients. When we see how it copes with its work, we shall consider whether it can take on duties for informal, voluntary patients. We have not committed ourselves to extending the role of the commission. We wish to see how it gets on in the first stages. I accepted my hon. Friend's argument that if we did not insert the power in the Bill now, we might have to wait for another 23 years before a Secretary of State can extend the work of the commission. Therefore, we are altering the primary legislation and giving a future Secretary of State the power to direct the commission to take on more functions if he believes it appropriate.
Other amendments make it possible for the commission to investigate complaints by persons other than detained persons and widen its general duty to act as a watchdog over the use of the powers in the Bill. We have provided that the code of practice should be subject to the negative resolution procedure, which will give an opportunity for parliamentary debate. That point was pressed by the hon. Member for Lewisham, West (Mr. Price). Another amendment requires the commission to send a report to any hon. Member who complains to it on behalf of a patient. That matter troubled my hon. Friend the Member for Basildon (Mr. Proctor).
I hope that the suspicions that some hon. Members expressed on Second Reading about the concept of the Mental Health Act Commission have been resolved. In response to undertakings given to the Committee, we are widening and broadening the commission's powers.

Mr. Proctor: We are discussing the major reforming legislation of the Session, and I make no apology for talking about the amendments at this late hour. Throughout the Committee stage I was concerned about the role of the Mental Health Act Commission which, with the question of consent to treatment, is at the centre of the Bill.
We have chosen that body to safeguard detained patients' interests rather than to provide a set of entrenched rights. Therefore, it is essential that that body operates vigorously and effectively, and is seen to do so.
I am pleased with the Government amendment requiring the commission to talk to any hon. Member who has filed a complaint on behalf of a constituent. I was delighted that in Committee the Minister was able to assure me that the commission would investigate complaints about clinical judgment, that a complainant could have the help of a friend when dealing with the commission and that the Government are satisfied that the projected manpower level will be sufficient for the commission to be effective.
I should like advice and an assurance about four aspects of the commission's work. First, will the complainants, Members of Parliament or others, in most cases be told not only the commission's findings, but the reasons for its findings?
Secondly, how will the commission enforce its findings? Will it—as I suspect it will as a delegated authority under the Secretary of State—have to rely on the Secretary of State to enforce its findings?
Thirdly, if the commission, in pursuit of its powers under clause 51, decides not to pursue a complaint, will


the complainant be told the reason for that decision and be able to have the decision reviewed by the Secretary of State?
Fourthly, which matters in clause 51(2) does the Minister envisage might be excluded from investigations? Perhaps the Minister will write to me.

Mr. Kenneth Clarke: I was about to do my best to extemporise, but that might not be helpful. I shall write to my hon. Friend and circulate copies of the letter to the hon. Member for Birmingham, Stechford (Mr. Davis) and other hon. Members who wish to be informed.

I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 110, in page 35, line 9, leave out from 'as' to end of line 11.
No. 49, in page 35, line 13, leave out subsection (4) and insert—

'(4) The Secretary of State shall lay copies of the code and of any alteration in the code before Parliament; and if either House of Parliament passes a resolution requiring the code or any alteration in it to be withdrawn the Secretary of State shall withdraw the code or alteration and, where he withdraws the code, shall prepare a code in substitution for the one which is withdrawn.
(5) No resolution shall be passed by either House of Parliament under subsection (4) above in respect of a code or alteration after the expiration of the period of forty days beginning with the day on which a copy of the code or alteration was laid before that House; but for the purposes of this subsection no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(6) The Secretary of State shall publish the code as for the time being in force.'.—[ Mr. Kenneth Clarke.]

Clause 51

GENERAL PROTECTION OF DETAINED PATIENTS

Amendments made: No. 50, in page 35, line 32, leave out from 'powers to 'and' in line 33 and insert
'and the discharge of the duties conferred or imposed by the principal Act and this Act so far as relating to the detention of patients or to patients liable to be detained under those Acts'.

No. 51, in page 35, line 37, after 'investigate', insert

'(i)'.No. 53, in page 35, line 42, at end insert 
';and

(ii) any other complaint as to the exercise of the powers or the discharge of the duties conferred or imposed by those Acts in respect of a person who is or has been so detained. ' .

No. 54, in page 36, line 6, at end insert—
'(3) Where any such complaint as is mentioned in subsection (1)(b)(ii) above is made by a Member of Parliament and investigated under the arrangements made under this section the results of the investigation shall be reported to him.'.

No. 55, in page 36, line 7, after 'purpose' insert
'of any such review as is mentioned in subsection (1) above or'.

No. 56, in page 36, line 15, leave out 'patient' and insert 'person'.

No. 58, in page 36, line 25, after 'exercising', insert
'functions in relation to any such review as is mentioned in subsection (1) above or'.

No. 59, in page 36, line 26, at end insert—
'(6) The powers and duties referred to in subsection (1) above do not include any power or duty conferred or imposed by Part VIII of the principal Act.' .—[ Mr. Kenneth Clarke.]

Clause 52

MENTAL HEALTH ACT COMMISSION

Amendments made: No. 60, in page 36, line 37, leave out 'section' and insert—
'sections (Review of treatment) and'.
No. 61, in page 36, line 41, at end insert—
'(3A) The Secretary of State may, at the request of or after consultation with tire Commission and after consulting such other bodies as appear to him to be concerned, direct the Commission to keep under review the care and treatment, or any aspect of the care and treatment, in hospitals and mental nursing homes of patients who are not liable to be detained under the principle Act or this Act—
(3B) For the purpose of any such review as is mentioned in subsection (3A) above any person authorised in that behalf by the Commission may at any reasonable time—

(a)visit and interview and, if he is a medical practitioner, examine in private any patient in a mental nursing home; and
(b)require the production of and inspect any records relating to the treatment of any person who is or has been a patient in a mental nursing home.
(3C) The Secretary of State may make such provision as he may with the approval of the Treasury determine for the payment of remuneration, allowances, pensions or gratuities to or in respect of persons exercising functions in relation to any such review as is mentioned in subsection (3A) above.'.—[ Mr. Kenneth Clarke.]

Mr. Geoffrey Finsberg: I beg to move amendment No. 62, in page 37, line 21 leave out 'publish annually' and insert
'in the second year after its establishment and subsequently in every second year publish'.
The amendment requires the Commission to report on its activities every second year instead of annually. The requirement for an annual report was inserted in Committee as a result of an amendment moved by my hon. Friend the Member for Basildon (Mr. Proctor).
I understand that my hon. Friend, and those who supported him, were concerned that the Mental Health Act Commission should be effective and accountable and should be a first-rate watchdog and not a second-rate one. We all share those objectives. We want the Commission to be effective in protecting the interests of detained patients. That means its members and staff should concentrate their time and thoughts and resources on visiting hospitals, investigating patients' complaints and monitoring the way the powers in the Act are used. Producing an adequate annual report takes a good deal of time and preparation, by staff and members-that is the experience of all sorts of public bodies. It would be much wiser if the Commission reported on its activities every two years than that it carried out fewer activities because of a statutory requirement to produce an annual report-or that it produced brief stereotyped reports every year.
A requirement to produce a report in every second year will be quite frequent enough to ensure that the Commission is accountable for its general responsibilities to Ministers, to Parliament and the public. It will thus be under a duty to report to us every two years on its overall activities, including any matters it wishes to bring to public attention. I wish to stress that that does not mean it will be silent for the rest of the time. If the Commission thinks that public attention needs to be drawn urgently or separately to a particular issue or to something it has discovered in its work, it will have the right to publish an interim report or use some other means of putting the matter on public record, for example through revision to


the code of practice. The Bill sets out what the Commission must do, as a minimum, to give a public account of its stewardship, but in practice the Commission will wish to do more than this—in other ways—to make its views known, and it can.
This amendment seeks to reverse a Government defeat in Committee. Hon. Members will appreciate that we have accepted almost all the changes made in Committee, subject only to drafting amendments. This is a rather special Bill, and has been through a Special Standing Committee, and we would not lightly ask the House to reverse the decisions of the Committee. But we do feel strongly about this issue. The obligation to produce a report once every two years is quite sufficient. We are not, though, asking the House completely to overturn the Committee vote. As it was introduced in this House, the Bill required a report in the third year after the Commission is established and then every second year. There was strong' pressure from my hon. Friend the Member for Basildon for something at least earlier than that.
The amendment I am now proposing will require a report in the second year after the Commission is established, then every two years. That is a significant change, to ensure that we have our first formal report a full year earlier. I hope that my hon. Friend, who was the inspiration of the annual report, will feel that he can be satisfied with the step that we have taken towards him.

Mr. Mike Thomas: I hesitate again to delay the House and also to blow my own trumpet, but, as the Under-Secretary of State knows, I was the inspiration behind this amendment. I am grateful to the hon. Member for Basildon (Mr. Proctor) for agreeing to move it on the one day that I was absent from the Committee, as it had coincidentally come up on that day.
I rise only to make a point that I made earlier. This is a direct reversal of what was decided in Committee. It is scandalous for the Minister to come before us and put forward false options. Annual reports do not have to be brief and stereotype. Indeed, the House would take great exception to an organisation established under an Act of Parliament that chose to make annual reports that were brief and stereotype. This is typical of the Under-Secretary's pettifogging approach to these problems. We now find our hearts sinking into our boots every time he moves or replies to a Government amendment. At this time of night there is no point in pursuing it, but I should point out that the Committee decided this matter. It was a sensible decision. If the average golf club secretary can produce a reasonable annual report for his members, there is no reason why this body should not produce an annual report. I suspect that this is a matter of pride for the Minister, or that he is back where perhaps he firmly belongs, in the hands of his civil servants.

Mr. Proctor: I am not the inspiration for annual reports generally, still less the inspiration for the suggestion that we should have annual reports for the Mental Health Act Commission. However, I was glad to move the amendment in Committee, to which my hon. Friend the Minister and the hon. Member for Newcastle upon Tyne, East (Mr. Thomas) have referred, on an occasion when the hon. Gentleman was absent. At column 625 and onwards I hope that I advanced some cogent reasons for the 

production of annual reports. I was more concerned about the commission being a sensible and dynamic body and I felt that such a body should have annual reports. Other dynamic bodies normally produce annual reports.
As the Bill is a compromise in many respects, I am inclined at this late hour to accept my hon. Friend's proposed compromise. I am grateful for the fact that we were able successfully to urge him to bring forward the first report from the commission from the third year to the second. I am only sorry that the Government chose the amendment that I moved in Committee to be among the very few minor changes that they decided to make.

Mr. Christopher Price: Even at this late hour I shall attempt to stiffen the backbone of the hon. Member for Basildon (Mr. Proctor), who moved the relevant amendment so ably in Committee. I hope that we shall be able to test the feeling of the House and discover how many Conservative Members are still present.
It is right to say that the Government have played fair. They have not reversed the majority of decisions that were taken in Committee, but they have decided to reverse the decision that was taken following the introduction of the amendment of the hon. Member for Basildon. I am not sure why they have done so. I suspect that the reason lies in one of the secret Treasury directives that swim around the Government. In a pathetic attempt to save money, they feel that biennial reports are broadly cheaper than annual reports.

Mr. Mike Thomas: It has just been vouchsafed to me by the Minister that this is the latest product of the Think Tank.

Mr. Price: I can believe that. I suspect that it must be a Treasury directive, otherwise they would not go to the length of stretching out this interesting debate in the wee hours for far longer than otherwise would be necessary.
A clear and sensible decision was taken in Committee to put the commission on exactly the same basis as all the other quangos that have the responsibility of reporting to Parliament and the public on the normal and regular basis of once a year. The Metropolitan Police produce their annual report and the prison authorities do likewise.
Even the Charity Commissioners produce an annual report. Why are the Government so adamant that we should have this anomaly? Why should they choose to create this extraordinary anomaly of a commission which produces a biennial report? That reminds me of when I was a small child and learnt about hardy annuals and biannual flowers. I cannot remember the names of the flowers, but I can remember that most of the flowers were annuals; some were perennials, but the biannual, which came and went every two years, was unusual.

Mr. Alan Clark: It comes up twice a year.

Mr. Tom Benyon: May I correct my hon. Friend? Biannual flowers come up every second year, then die.

Mr. Price: I have two versions. I have woken up the hon. Member for Plymouth, Sutton (Mr. Clark), who tells me that biannuals come up twice a year. The hon. Member for Abingdon (Mr. Benyon) tells me that they come up every second year, then die. However, I think that the image was useful. It shows that it is a ridiculous anomaly


to have a Mental Health Act Commission that is utterly different from all the other respectable, worthy quangos of the English Department of Health and Social Security—Home Office scene, in that it produces reports every other year.
However, there is another reason. Annual reports are not just a formality. It is absurd for the Minister to say that somehow a report every two years will be much more informative than an annual report. I have never heard so much nonsense in my life. The discipline of producing an annual report for Parliament and the public is an essential piece of accountability, which Parliament should insist on every time we create quangos.
I was sceptical about this quango. I watched the Scottish version and was sceptical about that. I still reserve judgment about an English one. If we are to have it, the least that we can expect is that it reports to Parliament and the public once a year so that Parliament can comment on a regular annual basis each Session about how the Mental Health Act Commission is proceeding. The public and interested journals can do the same.
I accept that, come the Wexham Parks of this world and the scandals, which will come, as all Western countries have them in psychiatric hospitals, a special report can be made, to which we shall look forward. But a regular annual report is needed. I remain utterly unconvinced by the Minister's arguments. If he refuses to have second thoughts, my advice to my hon. Friends is to press the amendment to a Division.

Mr. Geoffrey Finsberg: We are carrying this matter a little far. When we consider the genesis of the Bill in the other place, we see that there was not going to be an annual report. The original intention was for there to be a Mental Health Act Commission. It was to meet requests in Committee that my noble Friend Lord Elton tabled an amendment to the effect that the Commission should report in the third year after its establishment and then every third year. It was as a result of an amendment tabled by Lord Wallace, who still represents the same party as the hon. Member for Lewisham, West (Mr. Price), that it was agreed that it should report every second year. Then, entering the stakes, Lord Winstanley tried to make it every year. We went through that matter at great length. My hon. Friend the Member for Basildon (Mr. Proctor) appears to be satisfied that as the first of the reports has been brought forward to the second year, that would meet what he would like. I hope that the House will go along with that.

Question put, That the amendment be made:—
The House divided: Ayes 102, Noes 22.

Division No. 309]
[2.50 am


AYES


Alexander, Richard
Brown, Michael(Brigg &amp; Sc'n)


Alison, Rt Hon Michael
Bruce-Gardyne, John


Ancram, Michael
Bulmer, Esmond


Aspinwall, Jack
Carlisle, John(Luton West)


Atkinson, David(B'm'th,E)
Chalker, Mrs. Lynda


Baker, Nicholas(N Dorset)
Chapman, Sydney


Bendall, Vivian
Clark, Hon A.(Plym'th, S'n)


Benyon, Thomas(A'don)
Clarke, Kenneth(Rushcliffe)


Berry, Hon Anthony
Cockeram, Eric


Best, Keith
Cope, John


Biggs-Davison. Sir John
Costain, Sir Albert


Blackburn, John
Cranborne, Viscount


Boscawen, Hon Robert
Crouch, David


Bottomley, Peter(W'wich W)
Dickens, Geoffrey


Bright, Graham
Dover, Denshore


Brinton, Tim
Dunn, Robert(Dartford)


Brooke, Hon Peter
Faith, Mrs Sheila



Finsberg, Geoffrey
Page. Richard(SW Herts)


Goodhart, Sir Philip
Percival, Sir Ian


Goodhew, Sir Victor
Price, Sir David(Eastleigh)


Gow, Ian
Proctor, K. Harvey


Griffiths, Peter Portsm'th N)
Raison, Rt Hon Timothy


Grist, Ian
Rathbone, Tim


Hamilton, Hon A.
Renton, Tim


Hampson, Dr Keith
Rhys Williams, Sir Brandon


Heddle, John
Roberts, M.(Cardiff NW)


Henderson, Barry
Rumbold, Mrs A. C. R.


Hooson, Tom
Shaw, Giles(Pudsey)


Jessel, Toby
Shaw, Sir Michael(Scarb')


Jopling, Rt Hon Michael
Shepherd, Colin(Hereford)


Lang, Ian
Smith, Tim(Beaconsfield)


Lester, Jim(Beeston)
Speed, Keit


Lloyd, Peter(Fareham)
Speller, Ton


Lyell, Nicholas
Spicer, Jim(West Dorset)


MacKay, John(Argyll)
Stevens, Marti


McNair-Wilson, M.(N'bury)
Stradling Thomas, J.


Major, John
Taylor, Teddy(S'end E)


Marlow, Antony
Temple-Morris, Peter

Mather, Carol
Thompson, Donald

Maude, Rt Hon Sir Angus
Thorne, Neil(IIford South)


Maxwell-Hyslop, Robin
Trippier, Davi


Mayhew, Patrick
van Straubenzee, Sir W.


Mellor, David
Viggers, Pete


Mills, lain(Meriden)
Waller, Gar


Moate, Roger
Wells, Bowe


Morrison, Hon C.(Devizes)
Wells, John(Maidstone)


Murphy, Christopher
Wheeler, Joh


Neale, Gerrard
Wickenden, Keit


Needham, Richard
Wolfson, Mar


Neubert, Michael



Newton, Tony
Tellers for the AYES


Osborn, John
Mr. David Hunt and


Page, John(Harrow, West)
Mr. Tristan Garel-Jones




NOES


Bennett, Andrew(St'kp't N)
Morris, Rt Hon A.(W'shawe)


Campbell-Savours, Dale
Price, C.(Lewisham W)


Cocks, Rt Hon M.(B'stol S)
Skinner, Dennis

Cryer, Bob
Spearing, Nigel


Davidson, Arthur
Thomas, Mike(Newcastle E)


Davis, Terry(B'ham, Stechf'd)
Thorne, Stan(Preston South)


Dean, Joseph(Leeds West)
Wainwright, E.(Dearne V)


Dormand, Jack
Welsh, Michael


Eastham, Ken
Winnick, David


Ennals, Rt Hon David



Harrison, Rt Hon Walter
Tellers for the Noes:


Haynes, Frank
Mr. George Morton and


Marshall, D(G'gow S'ton)
Mr. Allen McKay.

Question accordingly agreed to.

Clause 53

N OF VOLUNTARY PATIENTS IN CERTAIN CASES

Amendment made: No. 63, in page 37, line 31, leave out clause 53.—[ Mr.Geoffrey Finsberg.]

Clause 54

DUTY OF MANAGERS OF HOSPITALS TO GIVE INFORMATION TO DETAINED PATIENTS

Mr. Geoffrey Finsberg: I beg to move amendment No. 111, in page 38, line 25, leave out 'this section' and insert—

'subsections (1) and (2) above'.

Mr. Deputy Speaker (Mr. Paul Dean): With this we may discuss the following: Government amendment No. 112.
Amendment No. 65, in page 38, line 26, at end add


—'(4) A copy of the requisite information, in writing, shall be supplied to the nearest relative of the patient (if any); provided that the patient may request that that copy be not supplied, in which case the request shall be complied with.'.

3 am

Mr. Finsberg: This amendment takes a further step in ensuring that, wherever possible, a detained patient's family is kept informed and involved. It will be given a copy of the information in writing telling the patient about his legal rights and status.
Our amendments are based very much on amendment No. 65 in the name of the hon. Member for Croydon, North-West (Mr. Pitt), which I am pleased to accept in principle. As the House will appreciate, it is important that the arrangements should be workable. Our amendment covers the position where the hospital cannot find out who the nearest relative is. It also specifies who is to supply the leaflet and says that it must be sent within a reasonable time.

Amendment agreed to.
Amendment made: No. 112, in page 38, line 26, at end insert—
'(4) The managers of a hospital or mental nursing home in which a patient is detained as aforesaid shall, except where the patient otherwise requests, take such steps as are practicable to furnish the person (if any) appearing to them to be his nearest relative with a copy of any information given to him in writing under subsection (1) and (2) above; and those steps shall be taken when the information is given to the patient or within a reasonable time thereafter.
(5) Section 52(5) of the principal Act (effect of order substituting acting nearest relative) shall have effect as if subsection (4) above were contained in Part IV of that Act. '.—[ Mr Geoffrey Finsberg.]

Clause 57

PROTECTION FOR ACTS DONE IN PURSUANCE OF THE PRINCIPAL ACT AND THIS ACT

Mr. Geoffrey Finsberg: I beg to move amendment No. 100, in page 39, line 29, leave out from 'Ireland' to second 'the' in line 32 and insert
'the reference in this section to the Director of Public Prosecutions shall be construed as a reference to'.

Mr. Deputy Speaker: With this we may discuss Government amendments Nos. 66 and 68.

Mr. Finsberg: This is a minor correction, on the advice of the draftsman for Northern Ireland, to clause 57, which was moved in Committee by my hon. Friend the Member for Beeston (Mr. Lester). We want to delete some words that are unnecessary because other legislation has the same effect.
Amendments Nos. 66 and 68 are two small, technical amendments which are consequential on amendments at an earlier stage about the functions of approved social workers.

Amendment agreed to.

Mr. Proctor: I beg to move amendment No. 114, in page 39, line 33, at end insert—
'(6) After subsection (4) there shall be inserted—
(5) The provisions of this section only apply to civil and criminal proceedings where the act complained of was done in respect of a person or persons who, at the time of the said act were detained under this Act or the Mental Health (Amendment) Act 1982".'.

This amendment follows on from the discussion in the Special Standing Committee originated by my hon. Friend the Member for Beeston (Mr. Lester) with regard to section 141 of the 1959 Act
No one would deny that section 141 is an important protection for the staff of mental hospitals. However, the Committee sought some clarification, and, as reported at column 654, my hon. Friend the Member for Beeston tried to establish the position of voluntary patients under section 141. I moved an amendment in Committee seeking to exclude voluntary patients from section 141
In his reply, the Minister seemed to think that the position was clear but said that he would come back on Report if it was not clear enough. The Government have tabled no amendments to section 141, even though the Committee was uneasy and unhappy about the position of informal patients under that section
The only occurrence since the Committee stage is a letter from my hon. Friend the Under-Secretary of State dated July 1982 to my hon. Friend the Member for Beeston, which was copied to all Members of the Special Standing Committee. I should like, if I may, to make some brief comments on each of the paragraphs in that letter. I am sorry if I try the patience of some of my hon. Friends, but the subject of mental health is important, even at three o'clock in the morning. Therefore, I do intend to put some important points to my hon. Friend the Under-Secretary.
Paragraph 2 of my hon. Friend's letter states:
Acts purporting to be done in pursuance of the Act could be done in relation to a patient who is not, but is believed to be, liable to be detained.
For example, a doctor who was not a registered medical practitioner might have signed an application to commit. There is also talk in that paragraph of protecting ambulance men who might take such a patient to hospital and nurses who might keep him in hospital or give him treatment.
In the circumstances envisaged in paragraph 2 there would be no point in suing the ambulance men or the nurse as they would almost certainly be unable to stump up any damages. It would be much more satisfactory to proceed against the hospital managers—the health authority or the doctor who falsely represented his standing—although that would probably be equally pointless. The action in such circumstances would probably be false imprisonment, which does not require the establishment of negligence or bad faith. Therefore, the innocent ambulance men are, in theory, at risk, but in practice I do not believe that any such case has ever been reported. It seems to be of insufficient weight to justify leaving unclarified the principle incorporated in amendment No. 114.
Paragraph 3 quotes the example of a nurse saying to an informal patient "I am withholding your letters from the post and the Mental Health Act gives me authority to do so." It continues:
There will be cases where the nurse had made a genuine and excusable mistake, for example, because a patient's records showed that he was detained or because the nurse relied on legal advice from the health authority which was unfounded.
As far as I know, no case along those lines has been reported, either. The same comments that I made with regard to paragraph 2 apply. The point here must be whether there is any reason or risk that justifies treating informal mental patients any differently from everybody else. For instance, if a policeman were instructed by a senior police officer to arrest somebody on a warrant obtained by a senior police officer which was invalid, I


expect that the arresting police officer could be liable in a false imprisonment action. It may seem unfair that we put the value of personal liberty so high for ordinary people that this type of liability is considered justifiable.
Finally, paragraph 4 of the letter raises the question of the Court of Protection. Most of the patients who are under the jurisdiction of the Court of Protection may also seek some protection under section 141 of the 1959 Act. I do not see why the protection of section 141 should be extended to those caring for informal patients under the jurisdiction of the Court of Protection. A receiver appointed under section 102 of the 1959 Act by a judge is authorised only to do those things that the judge orders or directs him to do. Therefore, so long as he remains within the direction of the judge, or more likely the registrar of the Court of Protection who exercises the functions of the judge, there can be no question of any action. If the receiver steps outside these bounds, I cannot think of any action that would not require negligence, bad faith or breach of fiduciary duty. If there is an action that does not require those elements, should it not properly be available to the informal patient as well as to the rest of us, for example in relation to the exercise of these powers by trustees?
Last night the Minister of State, Home Office said that exceptions made bad law. Here we have a whole string of hypothetical cases that make even worse law. I hope that my hon. and learned Friend will explain why we cannot remove the bar on section 141 in relation to informal patients.

Mr. Kenneth Clarke: I shall do my best to answer the questions raised by my hon. Friend the Member for Basildon (Mr. Proctor), although my hon. Friend the Member for Beeston (Mr. Lester) received an answer on 22 July, on which my hon. Friend has drawn. If the answer is studied and reread several times, it is clear, although perhaps not crystal clear, that we are dealing with a complex area of law and no explanation can be given in colloquial or readily accessible English, unless great care is taken.
At this late stage in our proceedings and at such a late hour, I hope that my hon. Friend is not challenging the fundamentals of section 141. Throughout our proceedings most people have accepted that the staff and the authority need some protection against actions by detained patients. The analogy that my hon. Friend drew of the policeman arresting someone wrongfully is not valid, because we are dealing with the mentally ill or severely mentally handicapped. Therefore, there is a risk that one symptom of their illness may be the taking of a malicious and unfounded action against a member of staff to whom they have taken a dislike. Obviously, the staff are entitled to some protection from such action.
Again, it was the Government's opinion that the protection under the 1959 Act went too far and tried to hedge about the ability of the High Court or the Director of Public Prosecutions to initiate proper civil or criminal proceedings where it was plain that a case should go to a court to be decided. Therefore, we reworded the important part of section 141 in clause 57, to which my hon. Friend's amendment is directed. The problem that concerns him is whether section 141 applies to voluntary patients so that even they cannot bring an action against a member of staff or the authority without going over the hurdles of section 141. It is difficult to paraphrase the precise, but rather

obscure language of the letters that have been going backwards and forwards on this subject, but basically the answer is that section 141 of the pricipal Act does not apply to informal patients in almost all respects. unfortunately, section 141 is not worded quite like that. It says that the protection of the section applies in all those cases—criminal or civil proceedings—in respect of any act purporting to be done in pursuance of the Act or any regulations or rules thereunder.
Therefore, the protection applies to actions under or purporting to be under the Mental Health Act 1959. It is almost impossible to conceive of any acts that could be done or could be purported to be done under the 1959 Act that would apply to informal patients. Almost all the powers given in the 1959 Act and in the Bill enable people to take actions vis-a-vis detained patients. Therefore, there are hardly any circumstances in which an informal patient could be affected.
Unfortunately, my hon. Friend, in trying to clarify the matter, has achieved the same effect as the existing law. In producing his alternative form of words he has taken out two detailed parts of section 141 which could, in a tiny minority of cases, have a practical and undesirable effect
3.15 am
First, my hon. Friend has taken away the clause about any act purporting to be done in pursuance of this Act. It was to the cases that would be damaged by taking those words out that the letter of my hon. Friend the Under-Secretary of State was directed. An act can be done under the Mental Health Acts only if the patient is a detained patient. Someone can carry out an act purporting to do something under the Act when he believes that the patient is a detained patient. Leaving aside the fact that people can act in bad faith, or be negligent, one can conceive, to take one of the examples in the letter, of an ambulance man who has a patient in his charge who he believes is a detained patient because he is told so. Therefore, he is told that he should prevent: the patient from escaping. If the patient attempts to go off and he takes steps to stop him from escaping, he might be liable to an action thereafter, but he would be protected if we retain section 141 with its present wording. That is an adequate illustration that there is cause for keeping the wording that we have.
The other detailed point that my hon. Friend left out by trying to reword section 141 is the references to part VIII of the Act, which is a whole section of the 1959 Act dealing with the Court of Protection, with which we have not yet had to concern ourselves. I am anxious not to go into the problem of the Court of Protection under the 1959 Act, except to say that it is necessary to give even receivers protection under section 141 against people subject to orders of the Court of Protection. Many of these people are not in hospital, but they are under the Court of Protection because they are seriously mentally ill and deranged. It is not unknown for people in that unfortunate position, frustrated because the Court of Protection will not allow them to have access to their money and affairs, to entertain themselves by taking frivolous and vexatious action against the receiver, or whoever is keeping them away from their money. They may wish to give the money to the cats' home, or whatever they wish to do with it. The Court of Protection is designed to stop them from doing that. It would not be right to take that protection away.
I doubt whether I have made the position much clearer than in the original letter, but this is an obscure part of the


law. My hon. Friend's main purpose is to ensure that informal patients in most ordinary cases are not cut off from their civil remedies or protection from the criminal law. Section 141 is already looked after by the wording we have in the principal Act and in the Bill. Although the amendment would in some respects clarify the wording, because of the two minor points I have described, this would be a backward step and we should take away protection in a limited number of worthwhile cases.

Mr. Proctor: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 58

REPLACEMENT OF MENTAL WELFARE OFFICERS BY APPROVED SOCIAL WORKERS

Amendments made:
No. 66, page 39, line 36, after 'Act', insert 'and this Act'.
No. 68, page 40, line 5, after 'Act', insert 'and this Ace.—[ Mr. Kenneth Clarke.]

Clause 59

ELECTORAL REGISTRATION OF PATIENTS

Mr. Mayhew: I beg to move amendment No. 80, in page 40, line 11, leave out from '1949' to end of line 15 and insert:
'for the words from "who is a patient" to "at any place" there shall be substituted the words "who is detained at any place in legal custody or by virtue of any enactment relating to persons suffering from mental disorder".
(2) Schedule(Electoral registration and voting in case of voluntary mental patients)to this Act shall have effect with respect to electoral registration and voting in the case of voluntary mental patients.'.

Mr. Deputy Speaker: With this amendment it will be convenient to take Government amendments Nos. 81, 82,
101, and 91:

NEW SCHEDULE

ELECTORAL REGISTRATION AND VOTING IN CASE OF VOLUNTARY MENTAL PATIENTS

Interpretation

1. In this Schedule—
the Act of 1949" means the Representation of the People Act 1949;
mental hospital" means any establishment maintained wholly or mainly for the reception and treatment of persons suffering from any form of mental disorder;
voluntary mental patient" means a person who is a patient in a mental hospital but is not liable to be detained there by virtue of any enactment.

Registration of voluntary mental patients

2. —(1) Subject to sub-paragraph (2) below, a person who on the qualifying date is a voluntary mental patient shall not be entitled to be registered as mentioned in section 8(1) or (2) of the Act of 1949 except in pursuance of a declaration made with reference to that date in accordance with paragraph 3 below.
(2) Sub-paragraph (1) above is without prejudice to the registration of a voluntary mental patient by virtue of his residence at an address other than the mental hospital in which he is a patient in any case in which he would be entitled to be so registered apart from this Schedule.

Patient's declaration

3. —(1) A voluntary mental patient may make a declaration under this paragraph (a "patient's declaration") if he is able to do so without assistance.
(2) A patient's declaration shall be made with a view to registration in the register of electors for a particular year and with reference to the qualifying date for that register.
(3) A patient's declaration shall be made during the twelve months ending with the qualifying date by reference to which it is made but shall not have effect if after it is made and before that date the declarant ceases to be a voluntary mental patient or cancels the declaration.
(4) A patient's declaration may be made by a declarant notwithstanding the fact that by reason of his age he is not yet entitled to vote.
(5) A patient's declaration shall state that it was made by the declarant without assistance and—

(a) the date of the declaration;
(b) that on that date and, unless it is the qualifying date, on the qualifying date next following the declarant is or will be a voluntary mental patient;
(c) the address of the mental hospital in which the declarant is a voluntary mental patient;
(d) the address where the declarant would be resident in the United Kingdom if he were not a voluntary mental patient or, if he cannot give any such address, an address (other than a mental hospital) at which he has resided in the United Kingdom;
(e) that on the date of the declaration the declarant is a Commonwealth citizen or a citizen of the Republic of Ireland; and
(f) whether the declarant had on the date of the declaration attained the age of eighteen year and, if he had not, the date of his birth.
(6) A patient's declaration shall be attested in the prescribed manner.
(7) If a person makes a patient's declaration declaring to more than one address, or makes more than one patient's declaration bearing the same date and declaring to different addresses, the declaration or declarations shall be void.
(8) A patient's declaration may at any time be cancelled by the declarant and, subject to sub-paragraph (7) above, a patient's declaration bearing a later date shall, without any express cancellation, cancel a declaration bearing an earlier date if it is made with reference to the same qualifying date.
(9) In this paragraph "assistance" does not include assistance necessitated by blindness or other physical incapacity.

Effect of patient's declaration

4. —(1) A voluntary mental patient whose patient's declaration is made with reference to the qualifying date for any register shall be treated in relation to that register—

(a) as resident on the qualifying date at the address specified in the declaration pursuant to paragraph 3(5)(d)above;
(b) in the case of registration in Northern Ireland, as resident in Northern Ireland during the whole of the period of three months ending on the qualifying date; and
(c)in any case, until the contrary is proved, as being a Commonwealth citizen or a citizen of the Republic of Ireland of the age appearing from the declaration and as not being subject to any legal incapacity except as so appearing.
(2) Where a patient's declaration appearing to be properly made out and attested is transmitted to the registration officer in the proper manner, the declarant shall, until the contrary is proved, be treated for the purposes of registration as having been from the date of the declaration or such later date, if any, as appears therefrom, and as continuing to be qualified to be registered as an elector.

Local government elections

5.—(1) Subject to sub-paragraph (2) below, no patient's declaration shall be specially made by any person for the purpose of local government elections but any patient's declaration made for the purpose of parliamentary elections shall have effect also for the purpose of local government elections.
(2) A patient's declaration may be made for the purpose of local government elections only by any person who is a peer subject to a legal incapacity to vote at parliamentary elections and, where so made, shall be marked to show that it is available for local government elections only but shall in all other respects be the same as any other patient's declaration.

Offences

6. Section 49 of the Act of 1949 shall have effect in relation to a patient's declaration as it has effect in relation to a service declaration, taking the reference to subsection (2) of section 10 of that Act as a reference to sub-paragraph (1) of paragraph 3 above and the reference to the particulars required by regulations under that section as a reference to the particulars required by sub-paragraph (5) of that paragraph.

Voting by post

7.—(1) A person who is registered by virtue of a patient's declaration may vote by post if he applies to be treated as an absent voter and furnishes an address in the United Kingdom to which a ballot paper is to he sent for the purpose.
(2) The application shall be for a particular election only.
(3) An application to be treated as an absent voter by virtue of this paragraph shall be made to the registration officer and shall be allowed by him if he is satisfied that the applicant is, or will if registered be, entitled under this paragraph to vote as an absent voter.

Supplementary

8. This Schedule and the Act of 1949 shall have effect as if this Schedule were contained in Part I of that Act.'.
Sub-amendment(a), in paragraph 3(1), leave out
if he is able to do so without assistance".
Sub-amendment(b), leave out paragraph 3(9).
Sub-amendment(c), leave out paragraph 7(2).
Government amendment No. 95.

Mr. Mayhew: These amendments give effect to the Standing Committee's decision that patients in psychiatric hospitals should no longer be prevented from registering as electors solely because they have no place of residence outside the hospital. They do so by enabling a voluntary patient resident in a mental hospital on the qualifying date for electoral registration to make a declaration which entitles him to be registered as an elector for an address outside the hospital and to obtain an absent vote at an election.
The electoral registration of mental hospital patients is a long standing problem in our electoral law. The Representation of the People Act 1949 provides that a person who is a patient in a mental hospital shall not be treated as resident there for the purpose of registration as an elector. Many patients have what is described as "constructive" residence at their home address, and the form which is delivered to householders each autumn contains instructions to include the names of voluntary psychiatric patients who are temporarily away from home. But there are patients in mental hospitals who have no home address where they can be registered. They may be mentally capable of voting, but the 1949 Act prevents them from being registered at the hospital, and if a person is not registered as an elector he cannot vote.
Mr. Speaker's Conference of 1973–74 recommended that, for the purpose of electoral registration patients in mental hospitals should be put on the same footing as general hospital patients, who can be registered as electors in the usual way. But successive Governments have failed to implement the recommendation, perhaps because they have not been able to resolve the substantial practical difficulties involved. An interdepartmental working party was set up to decide the arrangements which would be needed to bring the recommendation into effect. However, when it reported in 1978, the working party did not put forward single or conclusive recommendations on all the issues involved.
The central problem has always been who should decide a patient's capacity to vote. No one can be registered as an elector if he suffers from a legal

incapacity, and the common law disqualifies from voting those who are called idiots and persons of unsound mind. That is hardly ar up-to-date categorisation.
An electoral registration officer, faced with a list of patients resident in a mental hospital, must know in practice that some of them are disqualified at common law. If he includes the whole list in the register, he faces acrimonious and hurtful challenges to some of the names he has registered. But who can advise him on who should be left out? Doctors do not want this task. They have argued that it is no part of their job to offer that sort of advice. We have sympathy with them.
There is another practical factor. Many psychiatric hospitals are of a considerable size—a thousand beds and more. If patients were given the right to vote in the area where the hospital is situated, this could lead to a sudden large increase in the electorate in that area. This is naturally viewed with apprehension by local communities. Mental patients will inevitably be to some extent isolated from day-to-day life. We cannot expect them to take a full part in local affairs. Yet the votes of a thousand or so patients could exercise a disproportionate influence, particularly at local elections. The right to cast them could cause resentment in a field where all want to see fears broken down and not exacerbated.

Mr. Christopher Price: I admire the prose in which the Minister's speech is cast. Has he any evidence, however, that mental patients vote in a pattern that is in any way different from that of the population at large?

Mr. Mayhew: I am speaking of the fears and understanding of local communities. In making this kind of change in response to an amendment carried in a mental health Bill, which it would have been much easier to seek to overturn, everyone must have regard to practical realities. We are seeking to give effect to the spirit of the amendment while taking into account practical consideration such as those to which I have referred.
The need to give mental hospital patients the right to vote has been raised several times during the earlier stages of the Bill, both here and in another place. The Government's view has been that a mental health Bill is not the best vehicle for a change of this kind, which, as a constitutional measure, should go through all its stages on the Floor of the House. But we have listened carefully to the arguments which have been put forward in Committee. On the one hand, it is obviously unjust that a person should be deprived of a vote not according to how he is but where he is. On the other hand, it is unjust and undesirable that a community should be exposed to the influx of votes, especially in local elections to which I have referred. Until now, no solution has been found to the practical problems that would have to be resolved before the change is made.
There was a full discussion in Committee, which decided to add a new clause, now clause 59, deleting from section 4(3) of the 1949 Act the words that prevent a mental hospital patient from using his hospital address to register as an elector. That clause is technically defective because it fails to deal adequately with amendments to the 1949 Act under Scottish and Northern Ireland mental health legislation. The Committee may also inadvertently have given the vote to detained patients, though that was clearly not its intention, and, as far as I am aware, no one has ever argued for that. Indeed, it was expressly disavowed in Committee. So a change has to he made.
Although the Government advised the Committee not to accept the new clause, we have looked at the issues again and the proposed amendments represent a fair resolution of the problems involved in giving effect to the principle behind the Committee's decision. By far the simplest course would have been to delete clause 59. It was because we felt that the position established by the 1949 Act gives rise to injustice that we determined to wrestle with the problems of balancing the interests of the voluntary patient in being able to vote against the need of the community that the right should be sensibly conferred. In formulating our proposals we have consulted closely with MIND and those who led the representations on its behalf in Committee. We have been grateful for their help, and I acknowledge in particular the help of my hon. Friend the Member for Abingdon (Mr. Benyon) and the hon. Member for Lewisham, West (Mr. Price).
Our amendments replace the existing common law tests in the case of voluntary patients with the simple practical test of an individual's ability to make a declaration. They provide further that a patient is registered as an elector not in the constituency or electoral area where the hospital is sited, but at the address at which he would be resident if he were not resident in hospital or, if he cannot provide that, any address at which he has previously resided.
The system is set out in detail in the new schedule. A voluntary patient may make an annual declaration if he is, or will be, resident in a mental hospital on the qualifying date for electoral registration. He must have the mental capacity to make the declaration without assistance, but people who need assistance because of some physical incapacity such as blindness will be able to seek help in filling out the form.
The declaration will specify the address outside the hospital at which the patient is to be registered as an elector. Normally this would be the patient's home address, the address of his family, but patients who have no home address will be able to declare an address at which they were resident before admission or, if necessary, they will be able to declare the address to which they expect to be discharged—for example the address of a hostel. We have deliberately drawn the provision widely enough to ensure that no voluntary patient will be deprived of a vote because he cannot supply an address. The declaration will be attested by a member of the hospital staff and transmitted to the electoral registration officer in the patient's constituency. Once a patient's name is included in the register he will be entitled to apply for a postal vote at election time. It will be open to a patient to ask the electoral registration officer for a postal vote at each election for which he is entitled to one while the register is in force.
The Home Office and the DHSS will consult the political parties, electoral registration officers and health authorities on the regulations that will prescribe the manner in which the declaration is to be attested and transmitted to EROS, on the form of the declaration, which we intend shall be as simple as possible, on the content of the guidance given to EROs and hospital authorities, dealing, for example, with the addresses that can be specified, and on the extent to which a patient can be provided with assistance and with related practical matters such as the elector's right to receive an election address.
The regulations will be subject to affirmative resolution, and we hope to bring draft regulations before Parliament in good time for the commencement date for the provisions of 1 April 1983.
We believe that these amendments offer a simple, yet effective, solution to a problem which no previous Government have been prepared to tackle. They do not produce a structure which is entirely free of anomaly—that is conceded—but the voting arrangements for Service men already are anomalous. However, it is not for nothing that the 1949 Act was expressed as it was, nor that the recommendations of Mr. Speaker's Conference have remained hitherto neglected since 1973. These proposals have been formulated with regard to the need for general acceptance in the country—in other words, with an eye to reality. They will give the vote to thousands of people who for many years have been without it, not because of their mental state but because of their address. This is a long overdue change, and it is entirely in keeping with the spirit of the Bill. The amendments have been welcomed by MIND as a great step forward, and I believe that that view will be shared by all who have sought a change in the law. I hope that the amendments will be supported on both sides of the House.

Mr. Alfred Morris: The hour is late, but I am sure that the House will agree that the issues at stake in this very sensitive debate are important enough to merit our concern at any hour of the night.
I was not a member of the Standing Committee. This is thus my first intervention in the debates on the Bill. I pay warm tribute to those who served on the Committee—not least my hon. Friend the Member for Birmingham, Stechford (Mr. Davis)—for having worked so hard to improve the Bill. By their efforts, they have given hope of a greater sense of dignity for patients in mental hospitals.
The Government's alternative to clause 59 consists of two main points. First, a substantive alteration to the Representation of the People Act 1949 in amendment No. 80, and secondly, a schedule setting out the details in amendment No. 91. It is the schedule, as Rolf Hermelin of the National Society for Mentally Handicapped Children and Adults said to me yesterday, that is so deeply objectionable. Rolf Hermelin, who is highly respected on both sides of the House for his knowledge of and dedication to the interests of mentally handicapped people, writes:
Paragraph 3, sub-paragraph 5(d)of the new schedule appears to me as being deliberately designed to put as many obstacles as possible in the patient's path to the polling box.
We all know that many voluntary patients cannot remember their last residence, nor are they in a position to give an an address where
they would be resident if they were not a voluntary patient.
[Interruption.]If the hon. Member for Plymouth, Sutton (Mr. Clark) cannot behave himself and take an interest in what is clearly a very sensitive debate, he would do better service to his constituents and the House by leaving the Chamber.
The strongest argument against "the patient's declaration" is the fact that patients with mental disorders of precisely the same nature in a psychiatric ward within


a general hospital are entitled to vote without such a declaration under present legislation. As Rolf Hermelin's comment today continues:
To me it is utterly illogical to treat a patient differently in this respect just because he or she happens to be in a 'mental hospital' voluntarily".
I hope that few—if any—right hon. and hon. Members will want to ignore that statement. Even at this late stage, I hope that the Minister will respond to the force of what is an unanswerable argument.
What seems to actuate the Government now is a desire to disperse the votes of voluntary patients in mental hospitals. They are concerned about the effect of registering a large number of new voters at one place. Their fear, presumably, is that it could have a major effect on local elections in some areas. The Minister said as much in his speech. Voluntary hospital patients could even, it is feared, comprise the majority of the electorate in some localities. But would it not be a good thing to have at least some local public representatives who must specialise in the problems and claims of hospitalised disabled people and those who look after them?
In Committee, the Under-Secretary of State did not even attempt to deal with the question why a patient in a mental hospital should be treated differently, as to voting rights, from a patient in a psychiatric ward of a general hospital. In truth, of course, there is no logical answer. Nor is there any semblence of equity in treating the two people differently. The patient in the psychiatric ward of the general hospital could, if he or she wished, be registered from there, so why should the voluntary patient in a mental hospital be forced to register from an address outside the hospital? It is sometimes pot luck whether a patient goes to a psychiatric ward in a general hospital or to a mental hospital. How, then, can the Minister possibly justify the difference in treatment proposed in amendment
No. 91?
The deeply unfortunate consequence of amendment No. 91 is that some voluntary patients in mental hospitals cannot vote at all, since although they are living voluntarily in hospital and they are free to leave at any moment of their choosing, they have nowhere else to go and thus no meaningful home address outside the hospital from which to register as an elector. That makes the amendment a wholly discriminatory and unacceptable proposition. In the words of the Government's consultative document onCare in the Community:
There are many people [in mental hospitals] who would not need to be there if appropriate community services were available.
Yet in the 15 months since that document was published, community services have become more and not less difficult to provide, entirely because of the Government's relentless pressure to cut local public spending.
In a strikingly impressive article inThe Guardiantoday—entitled "The cash limits of a caring community"—Hugh Herbert points to the yawning gap between precept and practice when it comes to providing real community care. He quoted Tony Hammond, who runs a charity housing association for the provision in Southampton of group homes for psychiatric patients, as saying that:
…despite all the talk about community care, the community is not caring. What we are talking about are people who are lonely, bored, friendless, without families, and impoverished.
More than 40,000 adults and 3,000 children live in long-stay sub-normality hospitals. The Government say that

15,000 of them could be transferred to homes within the community, but no extra resources are being made available to provide adequate and comprehensive community care. Indeed, the reverse is true. They are making community care more and more difficult to provide.
Of all the groups that are denied a voice in our society, the mentally disabled still have the stiffest obstacles to overcome. They have historically been among the most devalued, neglected and abused groups in society. In the House even today we saw that public attitudes towards them are not only less informed but suspicious and at times even hostile. The mentally disabled are almost always deprived of the right to express opinions and to participate in making, let alone taking, decisions about their lives. Surely there can be no better way to help voluntary patients in hospitals achieve fuller citizenship than to vouchsafe to them the right to vote.
In Committee the Minister admitted that the present position was indefensible. He said:
The present position is an anomaly of electoral law, and it is a piece of electoral legislation that should be used to change it.
Against that there was agreement on both sides of the Committee that the rights of citizenship should come before making legislation neat and tidy.
I do not wish to criticise the Minister, because he is a feeling and thinking man. I recall his desire to improve access to polling stations for physically disabled people when I was a Minister between 1974 and 1979. There was a ready response from the Labour Government and many disabled people were helped in his and other constituencies. The Minister first approached me at the DHSS. I discussed the issue with my hon. Friend the Member for Halifax (Dr. Summerskill), then a Home Office Minister, and the problem was quickly resolved.
I hope that the Minister will not protest too much at my hon. Friends in Committee who said that helping disabled people to achieve fuller citizenship concerned not only Home Office Ministers.
The amendment agreed in Committee, now clause 59, was a triumph for all-party co-operation against a blatant appeal to party loyalty. The Minister told his hon. Friend the Member for Abingdon (Mr. Benyon), who had just made it clear that he was thinking of voting for the amendment moved by the hon. Member for Newcastle upon Tyne, East (Mr. Thomas):
I hope that he will at least take it from me, that one thing that ought to make him suspicious was the unanimity of 'Hear, hear' from Opposition Members when he made his speech."—[Official Report, Special Standing Committee, 22 June, 1982, c. 692–3]
What sort of argument is that in a debate about citizenship and issues of principle?
Now that it is conceded that my hon. Friends and the hon. Member for Abingdon were right in Committee and that the Bill is as good a vehicle as any for ending the anomaly, the Government seek to make it as difficult as possible for voluntary patients to vote. Instead of retreating gracefully from the ground that they failed to hold in Committee, they still want to discriminate against voluntary patients arid to perpetuate an illogicality.
Amendment No. 91 strains the very meaning of registration as a parliamentary elector. A basic criterion for entitlement to register as a parliamentary elector is residence. There are complications, but "residence" means where a person lives. For many of the people whom we


are considering in this debate that is hospital. I hope that the Government will think again. They are piling handicap on handicap by the requirements in amendment No. 91. They know that to be so and deserve strong criticism from the House.

Mr. Tom Benyon: The issues have been dealt with exhaustively. I listened with interest to the contentious and acrimonious brief read by the right hon. Member for Manchester, Wythenshawe (Mr. Morris). He said that the Government were acting in an indefensible, discriminatory and unacceptable way. I was largely responsible for the amendment being passed and I do not regard it as discriminatory or unacceptable. The Committee stage was conducted with unusual harmony and with a welcome attempt by both sides to get it right.
I very rarely do so, but I should like to pay great tribute to the Ministers who played a major part in that Committee for the patience, tolerance and humour with which they faced considerable difficulties from both sides. A good example of this patience, tolerance and humour is symbolised by the way in which they have dealt with this amendment.
3.45 am
The amendment is liberal. It has granted further freedom to people in psychiatric hospitals and has increased their status. If someone is in such a hospital there is no greater humiliation, in addition to all the other problems, than to have one's vote taken away. The Government have improved what we originally set out to do. What we originally set out to do had disadvantages. All of us here are practical politicians, but the idea of people canvassing psychiatric hospitals stuck in my craw. The Government have got us out of that considerably embarrassing temptation. There is no perfect way to sort out this anomaly and I concede that the Government are correct. The Representation of the People Act would have been a more suitable vehicle than the Mental Health (Amendment) Bill. Nevertheless, having been in the House for three and a half years, I took the opportunity of righting an anomaly when it struck me that the arguments for righting the anomaly were compelling. The Government have acted most imaginatively. What we have is highly satisfactory. I concede that it is not perfect and there are people who are bound to nit-pick. If we are, at the hour of 3.46 am, to turn the imaginative and helpful way in which the Government have treated this into an acrimonious debate, I can only say that I, for my part, would deplore it.

Mr. Mike Thomas: I rise to support the comments of the hon. Member for Abingdon (Mr. Benyon) I hope that he will not feel that I am diluting the credit that is due to him for the courageous course that he took in Committee if I remind the House that the amendment was originally tabled by me as a new clause. It is a little odd for the official Opposition to be complaining so bitterly about these matters when they did not bother at any point in the proceedings to table an amendment or a new clause to deal with the matter. Indeed, had I not tabled such a clause we would not be here debating this matter this morning. It comes ill from hon. Gentlemen who did not serve on the Committee to introduce a flavour and tone to these proceedings that we have not seen from the beginning of

the Bill. It is typical of the worst aspects of the two-party arrangements in the House. The retreat, by those who have not been subject to the amelioratory procedure of our Committee, into that type of two-party warfare will, I am sure, not be reciprocated by those on the Government Benches because they also had the benefit of taking part in the Committee stage.
The right hon. Member for Manchester, Wythenshawe (Mr. Morris) should take seriously what the Minister referred to somewhat obliquely, but nevertheless accurately, as apprehensions. There are apprehensions about this matter and when the Minister kindly agreed to meet me to talk about the ways in which we might secure agreement across the Floor of the House on this matter, I was more than conscious of the apprehensions of what he calls local communities. I am not sure that it is in order to refer to hon. Gentlemen and local councillors as local communities, but perhaps we may pass over that gloss.
It is reasonable for Ministers, particularly a Home Office Minister responsible for Representation of the People Act matters, to come to the House to point out that there are apprehensions in this matter, because clearly there are. I believe that he has taken a sensible course to try to deal with them. I accept that what the Minister proposes achieves the objectives that I sought and spelt out in Committee. I thank him for doing me the courtesy of seeking to see me and asking me to spell out what my objectives were so that he could be clear about what I was talking about in moving the amendment.

Mr. Alfred Morris: In Committee the hon. Member for Newcastle upon Tyne, East (Mr. Thomas) made a very strong point of his opposition to treating differently voluntary psychiatric patients in mental hospitals and those who find themselves in the psychiatric wards of general hospitals. I have quoted today the very distinguished view of Rolf Hermelin of Mencap.
He was the person who argued against the illogicality of amendment No. 91. It was Rolf Hermelin who argued that the amendment was dicriminatory. How does the hon. Gentleman square what he is saying now with his very strong insistence in Committee that there should not be any difference in treatment between those who are in the two types of accommodation?

Mr. Thomas: Like the right hon. Gentleman, it is clear that Mr. Hermelin does not know how to quit when he is ahead. I believe that the Government's proposals will achieve as much as we can reasonably expect. We shall be making a long-overdue advance in the civil rights of long-stay patients in hospitals. It is a major advance that is of critical importance to many. It is right to make the advance in a way that does not cause apprehension elsewhere. I believe that the Government have gone as near as we can reasonably expect them to go in finding a solution to the problem.
The right hon. Gentleman has raised a narrow point to which sub-amendments(a)and(b)are directed. I sympathise with his concern but I do not support the amendments of the hon. Member for Birmingham, Stechford (Mr. Davis). If we are to go down the road that the Minister proposes, which I advocate doing, it is right that there should be a simple test. It is not reasonable to say that long-stay patients in a psychiatric hospital are exactly the same as those whom we have no reason to believe may be mentally ill or handicapped. Clearly they


are not exactly the same. The minimal discrimination—I suspect that when the Minister replies it will transpire that it is not as much as even the right hon. Gentleman would like to suggest it is, and it is pretty minimal in reality—that will exist is a small price to pay for the advance that we are making. I believe that it is a price that we should be more than willing to pay. We should not be carping and criticising. We should be saying "Thank goodness that at long last someone has taken the trouble"—it must have been considerable trouble bearing in mind all the difficulties that are involved—"to try to get this right."
Subparagraph (9) deals clearly with the problems of blindness and physical incapacity. It would be wrong for those who are in some way physically unable to complete the test to be disbarred, and the Minister has dealt with that. To expect the result that would be produced by sub-amendments(a)and(b)is to be unrealistic and to undermine the means by which the Minister is hoping to make progress.
I am not clear about sub-amendment(c), which seeks to enable patients who qualify under the provisions now being made to secure a postal vote for a substantial period rather than for one election. I am not clear how that relates to the necessity for the patient to take the test every year to get on to the electoral roll every year. If a patient is taking a test every year to get on to the electoral roll every year, there is not much purpose in stopping him having a postal vote on a continuing basis—in other words, making him continue to apply for a postal vote. Perhaps the Minister will explain the reasons behind that. For the moment I have an open mind on the issue.
As I have said, this is a major achievement. The Government made a slightly shaky start but they have done extraordinarily well. I support them and thank them for what they have done. I wish we had a little less carping from the Official Opposition.

Mr. Ennals: I do not want to follow the slightly partisan approach of my right hon. Friend the Member for Manchester, Wythenshawe (Mr. Morris), nor to be as combative as he is. We should congratulate the hon. Member for Newcastle upon Tyne, East (Mr. Thomas), who raised this matter in Committee. The hon. Member for Abingdon (Mr. Benyon) said that he was not convinced by the hon. Gentleman. It required even my wisdom to finally convince him. It is probably the only time that I have convinced a Conservative Member to do anything.

Mr. Tom Benyon: That is a figment of the right hon. Gentleman's imagination.

Mr. Ennals: The Government are entitled to credit for deciding to include the amendment in the Bill, when it seemed in Committee that they would try to remove it. We should bear in mind that it was a recommendation of the Speaker's Conference more than 10 years ago and that the Government of which I was a member did not bring in the change in any legislation.
The solution is not satisfactory. As the problem has been before the House for more than a decade, we should get the solution right. It is not up to any of us to determine who has the intelligence and judgment to vote. People who have been mentally ill or who are mentally handicapped but live in their houses have the vote. We may think that they are not capable of passing a judgment, but we do not say that. Those who live anywhere can vote in one way or another.
My objection to the proposal is that we still will leave a significant number of people—it may run into tens of thousands—whom we are seeking to enfranchise but who will not be enfranchised. I have met some of the people who live in long-stay hospitals, some for over 40 years—most of their lives. They may remember where they used to live--for example, No. 2 Buckingham Street, Liverpool SW3, which was pulled down years ago. It would be a bogus address if those people were to put it on the electoral register. The address might be that of a house in which someone else now lives, who may find that someone has put his own name on the register and has the right to vote, which would cause alarm and concern to the person who still lives in that house.
The amendment is chock full of anomalies, which are created because the House seems not to be prepared to accept the recommendations of the Speaker's Conference. It was the wish of the Speaker's Conference that someone whose only residence was a hospital should be entitled to call that hospital his residence, in precisely the same way as tens of thousands of elderly people who live in old people's homes run by local authorities or voluntary organisations register that home as the place where they live.
The hon. Member for Abingdon may find it embarrassing to canvass in old people's homes, where many old people, because of their age and senility, are not wise enough to understand the hon. Gentleman's fluency, but I do not find it embarrassing. I would not find it embarrassing in a hospital. Hospitals are getting smaller. That is one of the good things. More people are moving into the community. But a substantial block of people is left whose only residence is the hospital where they are living and will probably live for for the remainder of their lives.
4 am
I am not part of the magic circle. I congratulate the Minister on the consultations. Doubtless the hon. Members for Abingdon and for Newcastle upon Tyne, East were consulted. Even MIND was brought in, although Mencap was not. L do not complain that I was not, but having seen what is on the Order Paper I have the freedom to criticise it. I want the Government to think again.

Mr. Mike Thomas: Before the right hon. Gentleman gets carried away with paranoia, let me say that I had a discussion with the Minister to apprise him of my views. I was not consulted on the content of the schedule and felt free to criticise it had I wished to do so.

Mr. Ennals: I resent the accusation of paranoia.

Mr. Thomas: It was light-hearted.

Mr. Ennals: I have spent many years working in the field of mental health and visiting hospitals for the mentally sick and handicapped. I have spent much of my life trying to get such people out into the community, often with success.
There is no earthly reason why the Minister should consult a former Secretary of State, but I enjoy the freedom to criticise this botched job.
It will not be difficult for the Minister to get it right. I assume that the Bill will reappear in another place. He should accept that :'or people who have no other residence the hospital should be recognised for the register in the


same way as the old people's home. I do not believe that hon. Members who have supported him would feel that he had betrayed what they had asked him to do.

Mr. Christopher Price: It is late and I am not paranoiac about the amendments.
The amendments are not the end of the day. They are not satisfactory. They still leave anomalies and a system of registration that is not satisfactory for voluntary patients. I believe, like MIND, that when a Government of either colour introduce a proper representation of the people Bill to clear up the many electoral law anomalies, we must reconsider the issue and overcome the irrational fear about what is known as swamping, although the word has received unhappy connotations in the past year or so. I repeat that there is no evidence that mental patients are more likely to vote Labour, Conservative, Social Democrat or Liberal, or in any pattern other than that of the population at large. The fear of swamping is unreal. We must put down a marker so that when the time comes to tidy electoral law, this element will be cleared together with other anomalies.
On the other hand, I am a realist. I was surprised at and grateful for the fact that the hon. Member for Abingdon (Mr. Benyon) voted with the Opposition. Perhaps, to some extent, he was persuaded by my eloquent speech in Committee, although there may have been some other reason. He was brave to do so with the Whips, Ministers and even the functionaries glowering at him. The Government faced a problem that had to be solved before the Bill reached Report stage. I pay tribute to them for their efforts to solve the problem.
I admit that Governments, either Labour or Conservative, might have solved the problem simply by reversing the Committee decision on Report. But the Government decided not to do so, and took a real step forward in trying to find a way to enfranchise a large number of people who should have the vote. There is absolutely no reason why they should not have it.
I am worried about the phrase in paragraph 3
if he is able to do so without assistance".
I know many people in old people's homes, geriatric hospitals or who live on their own, who need assistance to fill in their postal vote forms. Sometimes their candidates help them, and I plead guilty to assisting a number of elderly persons.
To be fair, I do not think that the Minister wishes to put mental patients at any greater voting disadvantage than the voter at large. Can the Minister say a little more about how he interprets the meaning of "without assistance" and how he intends to consult about the regulations and advice given by the Government to hospitals on how to interpret the words "without assistance"? That would help me to vote later.
I regard this set of amendments as a bonus. I never expected it. As a realist, I think that we should be grateful for small mercies. The amendment represents a genuine step forward. Although, when the time arrives, the Opposition will wish to improve the provision, there is much to be said for accepting it in its present form if we can obtain the right assurances from the Minister about the meaning of "without assistance".

Mr. Terry Davis: I am beginning to think that I was the only person who voted for the new clause in

Committee who does not want to claim credit for it. It was carried by seven votes to six. I approached that debate with an open mind, and cannot claim credit for putting the new clause forward. I went to the Committee without any preconceived opinions. I had not made up my mind about how to vote. I listened to the debate, was persuaded that the case put forward, particularly by the hon. Member for Newcastle upon Tyne, East (Mr. Thomas), was a strong one and voted for the new clause.
As the hon. Gentleman seems to be concerned about taking credit for the new clause, I should point out that it was signed by several of my hon. Friends. He cannot know whether another hon. Member would have tabled a similar new clause had he not got in early in our Committee proceedings.

Mr. Mike Thomas: From what the hon. Gentleman has just said, I can be quite clear that he would not have done so.

Mr. Davis: Absolutely. I listened to the debate in Committee and was persuaded by the arguments put forward by the hon. Gentleman. Almost all my hon. Friends went into the Committee with their minds made up and voted to extend the franchise to mental patients regardless of the debate. I give the hon. Gentleman all the credit that he seeks for tabling the new clause.
The major reason why I voted for the hon. Gentleman's new clause was the poor Government argument in opposition to it. In no way do I criticise the Under-Secretary, who coped well with a poor argument. He said that it was improper to use a mental health Bill to effect a constitutional change. He advanced the novel constitutional doctrine that we could not deal with this subject in a mental health Bill, that a Bill was the property of a Department, that this Bill was the property of the DHSS and that this subject should not be included as it was the responsibility of the Home Office. However, several other issues in the Bill could be described as Home Office matters.
After the result in Committee, the Government considered their position, accepted the decision and have come forward with these amendments, but I regard their conversion as less than wholehearted. The hon. Member for Newcastle upon Tyne, East and the hon. Member for Abingdon (Mr. Benyon) are satisfied that the Government amendments give effect to what they wanted in Committee. The hon. Member for Newcastle upon Tyne, East has been especially firm in that regard, but he must not complain if other hon. Members take a different view.
My concern is twofold, but I should point out that the amendments affect detained patients as well as voluntary mental patients. In Committee it was clear that it was not our intention to give the vote to detained patients. To that extent, the Government's proposals reflect the views of the Committee. I support amendment No. 80, which makes it clear that we are drawing a distinction between detained patients and voluntary mental patients.
Nevertheless, I must draw attention to the fact that in amendment No. 80 we might be taking away the vote from some people who have it at present. It is possible for people to be detained in the psychiatric unit of an ordinary hospital. As the law stands, those people would be entitled to be registered to vote at the hospital. Amendment No. 80 will have the effect that anyone who is detained is not entitled to be registered to vote anywhere.

Mr. Mike Thomas: I accept that that is the likely impact of the clause. However, surely that cannot be a sensible argument against it. It was an anomaly for those people to have had the vote in the first place. There are not many of them, and it is right that the vote should be taken away from them.

Mr. Davis: I am not sure that it should be taken away from them, because someone may be detained not as a result of his mental capacity or mental illness. The medical director for Broadmoor hospital came to the Committee and gave evidence. He emphasised that the only difference between his detained patients and voluntary mental patients was that one group agreed to enter hospital and the other group would not agree of their own free will and therefore had to be detained. It had nothing at all to do with their illnesses. That was what Dr. Udwin told the Committee. Clearly, it is not the illness which decides whether someone is detained or not.

Mr. Mike Thomas: Mr. Mike Thomasrose—

Mr. Davis: I did not interrupt the hon. Gentleman. If he will let me complete my explanation, I shall willingly give way later. Indeed, he may wish to seek leave to address the House again.
Before I describe the two areas of concern, I wish to draw attention to the fact that amendment No. 80 may take away the vote from some people who have had it in the past, whatever the hon. Gentleman intended. He is satisfied that such people should not have the vote. I am not. As a result of amendment No. 80 detention in a mental hospital will have the same effect as imprisonment.
The first area of concern is a group of practical difficulties. I use that phrase because it was used by the Minister of State, Home Office. He said that there was a practical difficulty in deciding an elector's capacity to vote and that if an electoral registration officer received a list of voluntary mental patients, registered to vote at a hospital, he must know that some patients lack the common law capacity to vote. Therefore, we must have a declaration as a test of capacity to vote.
We do not have a test of capacity for anyone else to be registered to vote in Britain. Anyone can be registered The only test of capacity arises when that person goes to a polling station to vote. The clerk at the polling station can ask a question to the effect "Are you the person whose name appears on the register at this address?" That is the only question that is asked. If the person gives a satisfactory answer to that question, he is permitted to vote. I have checked that with an electoral registration officer who has had frequent requests for advice from parents of those suffering from severe mental illness or handicap. He assured me that he always gives the advice that everybody should be registered. It is not the job of parents to register or not register people according to their judgment of those persons' capacity to vote. That is a matter to be settled on polling day.
It follows that if somebody has a postal vote through RPF7 or RPF8, he would never have to answer that question at a polling station. Nevertheless, it is a fact that no declaration of capacity has to be made by anyone else who is to be registered. We shall now introduce this declaration only for voluntary mental patients in hospitals for the treatment of mental illness.
The schedule, amendment No. 91, also requires a declaration to be attested. There is no provision anywhere in electoral law for a declaration, which is often made by electors about various points, to be attested by anyone else. The question of attestation does not apply to any other elector.
Paragraph 3(1) of the schedule provides:
A voluntary mental patient may make a declaration
—and therefore be entitled to be registered to vote—
if he is able to do so without assistance.
The purpose of amendment(a)is to strike out the words
if he is able to do so without assistance".
Amendment(b)is simply consequential. If those words are struck out, we do not need the reference to those who are blind or who are physically incapacitated in some other way. The hon. Member for Newcastle upon Tyne, East says that it is reasonable to have such a test and that it should be carried out annually. However, it does not apply to other people and others can obtain assistance. There is no question of people in the community not requiring assistance if they intend to register to vote. There is no question of people not needing assistance if they are going to register to vote at an ordinary hospital. There is no question of assistance not being required if someone wishes to register KO vote, even if he is a voluntary mental patient in the psychiatric unit of a general hospital.
The test is unique. The test that a person should riot need assistance will apply only to voluntary mental patients. It is an additional test for them and for them alone. It does not apply to geriatrics who are living in old people's homes, nor should it. The same criterion and test as apply to other groups of electors who need assistance should apply to voluntary mental patients. I can well understand that someone who has lived for many years in a mental hospital will need assistance in completing an electoral registration form. I have recently been involved in collecting postal vote applications in a by-election. Many hon. Members will have found that electors who are not voluntary mental patients are somewhat puzzled and taken aback by the application for a postal vote. To ask us to believe that a voluntary mental patient should be able to complete this declaration without any assistance is to ask too much. It is not unreasonable for a voluntary mental patient to be able to discuss the form with a nurse or someone else at the hospital. For many patients it will be the first time that they have seen an electoral registration form. It is too much to say that they must not have assistance. Yet another obstacle is being put in their way.
The hon. Member for Newcastle upon Tyne, East could not see the point of amendment(c). The point is simple. The provision in paragraph 7(2) of amendment 91 means that an application for a postal vote shall be for "a particular election only". In 1974 there were two general elections. A voluntary mental patient would be required to make two applications for a postal vote. He would be required to make an application for every election. If he wished to vote in a local election he would have to apply for a postal vote in that election. Indeed, the Minister has not made it clear whether he intends to allow postal votes in local elections. However, I expect that he does intend to allow it, because it is possible for those who qualify for a postal vote under the RPF 7 procedure to have a postal vote on medical grounds and that applies to all elections in the course of a year, or even longer. Much depends on the certificate given by the medical practitioner.
The Government say that a voluntary mental patient must apply for a postal vote for every election. It is clear that it is to apply to one election. The same requirement applies, I believe, to voters in the Services, but I question whether that is wise. There is some justification in the case of Service men, because they are likely to move from base to base and camp to camp and sometimes go abroad. They move much more frequently than voluntary mental patients. We are talking about voluntary long-stay mental patients. Let us take the example of a voluntary mental patient who registered in St. Marylebone or one of the Newham constituencies, where by-elections occured between the two elections in 1974. There were three parliamentary elections and probably a local election as well.
However, the Government say that voluntary mental patients should make four applications for postal votes in such a case if they wish to exercise their rights. That does not apply to the physically ill and I do not see why it should apply to voluntary mental patients who happen to be in a hospital rather than elsewhere.

Mr. Mike Thomas: I do not quite understand why the hon. Gentleman believes that someone is trying to do him down or to frustrate the purpose of the House. If, after consulting the political parties and various other people as promised, the Minister gratuitously devised in the regulations a procedure that made it excessively difficult for voluntary patients to complete the form and gain their rights, his criticism would be justified. Why should we a priori assume that that is the Minister's intention? It is presumably not his intention. On the postal vote, I start to understand the hon. Member for Birmingham, Stechford (Mr. Davis) and I shall listen with interest to what the Minister has to say. I wish, however, that the hon. Gentleman would not start from the assumption that the Government, who, it seems to me, have moved substantially on the matter, are trying to do the thing down. It seems to me that the Government are trying in difficult circumstances to get the thing right.

Mr. Davis: We have to believe that the Government mean what they say in what they put before the House of Commons. If the Government do not intend to insist that a voluntary mental patient shall apply for a postal vote for every election, they would not have stated that the application shall be for a particular election only. If the Government had intended that voluntary mental patients should be able to receive assistance in completing the declaration form, they would not have specified that a voluntary mental patient may make a declaration if he is able to do so without assistance. Words must be taken to mean what they say. If the Government say that a voluntary mental patient shall do this only if he can do so without assistance, we are entitled to say that this is an unnecessary restriction and obstacle in the registration of voluntary mental patients.
I have explained my tabling of three amendments which, subject to what the Minister says, we shall wish to press. Another area of concern relates to the reasons for refusing to allow voluntary mental patients to register at the hospitals where they reside. The hon. Member for Newcastle upon Tyne, East must recognise that this was not covered in Committee. I felt it was inherent that voluntary mental patients should register to vote at the

hospitals where they reside in the same way that voluntary mental patients can register to vote where they reside in the psychiatric unit of a large general hospital. Great play was made in Committee of the anomaly of voluntary mental patients in psychiatric units in general hospitals being able to register to vote and voluntary mental patients in hospitals intended mainly or wholly for treatment of mental illness being unable to register.
It is clear that our discussion in Committee was concerned with putting these voluntary mental patients on an equal footing. This is not going to happen. Voluntary mental patients who reside in a hospital that is wholly or mainly for the treatment of mental illness will not be able to register at that hospital. They will be required to notify a residence, either a place where they have resided or a place where they would reside if discharged from hospital.
The Minister says that he has introduced this procedure because there is some concern about the size of mental hospitals and about a sudden large increase in the electorate. The Minister says that there is apprehension in some local populations and he is concerned that this apprehension could lead to resentment and fears. I agree with my right hon. Friend the Member for Manchester, Wythenshawe (Mr. Morris) that if substantial numbers of voluntary mental patients registered to vote in some local government wards, it would lead some councillors to become even more interested, responsive and receptive to the interests of those patients.

Mr. Alan Clark: It has been argued that 40,000 voluntary mental patients are eligible. If the hon. Gentleman is concerned with the concept that voting en bloc might lead local councillors to pay more attention to their requirements, what does he think of the idea that all should be independently registered and form a single constituency of voluntary mental patients sending a Member to this House?

Mr. Davis: I would consider that as objectionable as the idea that Service voters should form a single constituency. The numbers of Service voters are substantial. They are dispersed. They are not registered at the camps where they serve. They move between bases frequently. I cannot see the point of all voluntary mental patients being grouped together to form one constituency.
The Minister's point was that if he had sought to overturn the amendment, that would not have been in the spirit of the discussions in the Committee. Hospital patients are registered at a hospital or at a place of residence, if they have a residence. This means that short-stay patients in hospitals are not registered at the hospitals. This should apply to voluntary mental patients as well. Many are admitted to hospital for short periods, and they are still registered at their homes and should still be so. I am sure that the Government do not intend to interfere with that, as it is written into amendment No. 91.
4.30 am
The Opposition are concerned about voluntary mental patients who do not have another home. There is no need for any special provision. Those patients should be able to register at the hospitals where they live, if they wish. The choice should be theirs.
The hon. Member for Abingdon referred to the problem of canvassing, a problem that exists for other hospitals, both those that may have a small number of voluntary mental patients in a psychiatric unit and those that do not.


It may also apply in the case of old peoples' homes. The problem is not helped because most candidates would not venture into a hospital or an old people's home unless that was available to all candidates and accepted by everyone, and by the officers in charge of the establishment.
The problem also exists for the staff at mental hospitals. I looked at an electoral register for a ward where there is a significantly large mental hospital. There is a long list of people who are registered at the hospital—they are the staff. The candidates have all the problems in seeking to canvass those electors as they do in canvassing patients.
Under the procedure suggested by the Minister, the register will not show an address if it is a past residence. In other words, someone who is a voluntary mental patient will notify the electoral officer that he used to reside at a place, and will be treated as a Service voter. It is well known that the addresses of Service voters have been removed from the electoral register in recent years, as a result of security difficulties. That presents difficulties for the candidates. Those Service voters do not receive any electoral literature, and although they may apply for a postal vote, they will vote purely on the party label. It is unlikely that they will know the candidates, although they might know the sitting Member, and they do not receive any election literature.
Voluntary mental patients would have the same problem and would be prevented from taking part in the normal processes of an election, such as reading a candidate's views and making up their minds. I believe that that is the intention of the Government. If it is not, we have a different problem.
If we register voluntary mental patients at places where they used to live years ago, there will be the problem described by my right hon. Friend the Member for Manchester, Wythenshawe (Mr. Morris). They will use addresses where other people now live. Unmarried women may suddenly find that someone is registered at their address under a different name, which results in cohabitation queries from the DHSS.
As I understand the Government's suggestions, the address will still be shown if someone says that he would reside at an address if he were not at the hospital. There will be all the problems of having people registered at other people's homes. The Government have not thought through the practical difficulties that will apply if they follow the procedure outlined in amendment No. 91. If the Government are not willing to allow mental patients to register at hospitals, why make the distinction between voluntary and detained patients? The illnesses are often the same, and the Government are depriving some of the detained patients of the vote. They will also deprive some people who have the vote at present because they are not receiving treatment. As a result of the cases of Winwick and Calderstones hospitals, which were described at some length in Committee, some people were registered for the first time. They are not receiving treatment, but they are living at mental hospitals.
It is proposed that a voluntary mental patient would not be entitled to be registered at a hospital, but I have reason to believe that the definition of "patient" is not given. I understand that the interpretation in section 147 of the Mental Health Act 1959 does not apply in this context and it follows that anyone at a mental hospital will be classified as a voluntary mental patient, unless he is detained, in which case he will not register anyway, or he is on the hospital staff. I shall be glad if the Minister tells me that

I have misunderstood the point, but my inquiries suggest that that will be the result of the procedure that has been welcomed by the hon. Member for Newcastle upon Tyne, East.
The Minister said that he would consult the political parties—I was delighted to hear that—and about regulations. The point is that he has not yet consulted about the procedure outlined in amendment No. 91. He is asking us to approve the procedure by accepting the amendment and then to discuss the implementation. I will not draw the obvious analogy with the NHS where the Government are also willing to discuss implementation, but not the principles of what they want to do.
There is another issue. The Minister says that amendment No. 91 is designed to achieve general agreement. It does not meet general acceptance from the Opposition, and we believe that voluntary mental patients should have the option of registering at the hospital where they reside
The Minister rightly said that it is a constitutional matter and that the Government would normally take the view that it should go through all stages on the Floor of the House. I agree. I do not regret my vote in Committee in support of the new clause of the hon. Member for Newcastle upon Tyne, East, but it is clear that the details need careful consideration. I suggest that the best procedure would be to accept amendment No. 80, which draws a distinction between detained patients and voluntary mental patients, but to reject amendment No. 91. The Government should bring a short constitutional Bill before the House in the next Session so that we can examine the procedure in the detail that it deserves.

Mr. Mayhew: I am extremely grateful for the detail and care with which hon. Members have addressed the amendment. I hope that I shall not be accused of discourtesy if I deal with the matter briefly and do not go into immaculate detail on every point that has been raised.
I am grateful to the hon. Member for Newcastle upon Tyne, East (Mr. Thomas), my hon. Friend the Member for Abingdon (Mr. Benyon) and the hon. Member for Lewisham, West (Mr. Price) for the welcome, in varying degrees, that they gave to the amendment. I particularly draw attention to the fact that the hon. Member for Newcastle upon Tyne, East said that the amendment represents all that he, the mover of the relevant amendment in Committee, could reasonably have hoped for. He has said that it gives him what he asked for. I believe that I am entitled to rely on that when dealing with the speech of the right hon. Member for Manchester. Wythenshawe (Mr. Morris), which missed the mood of the occasion and certainly did not match the mood of the Committee.
It was hyperbole and unpersuasive of the right hon. Gentleman to suggest that the amendment is deliberately designed to put as many obstacles as possible between a voluntary mental patient and the ballot box and to make the procedure as difficult as possible.

Mr. Alfred Morris: I was quoting there a distinguished representative of Mencap. Will the Minister respond to the argument on that ground?

Mr. Mayhew: If the right hon. Gentleman was simply growing a thistle in order to behead it, he disguised his intention adequately. I believed that he was quoting with


approval. I have only to point to the overall effect of the amendment to show what nonsense that right hon. Gentleman was speaking. It was real bosh.
We are erecting here a simple test of competence in the form of a declaration, which I have said we intend to make as simple as possible, setting out the particulars that are described in the schedule. I take the view that there has to be a test of competence if we are to meet the reasonable apprehensions that exist in the community and which the hon. Member for Newcastle upon Tyne, East said certainly existed, and which we were right to take into account. If a person cannot say where he has lived in the past, where his home is, or where he would expect to be when he was discharged, it is my view that most reasonable people would say that he is not mentally capable of voting.
The right hon. Member for Wythenshawe was wrong to say that a large number of people would be disfranchised, because they had no home to go to. That is not the exclusive test. Indeed, it is not the test set out in the schedule. The test is that they should say where they would be if they were not resident at a mental hospital. It may be their home, if they have one. It may be a hostel to which they would expect to be discharged if they were no longer resident at a mental hospital. It may be, as a saver so that no one shall be disfranchised, any address at which they have lived. If they cannot provide any of those particulars, I believe that most people would say that they are not mentally capable of voting properly.
The right hon. Member for Wythenshawe adopted with approval some swingeing criticisms of the Bill and some pretty unflattering suggestions as to our intentions. It comes slightly ill from a right hon. Gentleman who had responsibility as Minister with responsibilities for the disabled in the last Labour Government, a Government who did absolutely nothing to implement the recommendations of the Speaker's Conference. The right hon. Member for Norwich, North (Mr. Ennals) gracefully admitted that his Government did not do that.
The hon. Member for Lewisham, West and others were worried about the phrase
if he is able to do so without assistance".
A patient will always be able to make a declaration if he is mentally capable. He can be assisted if he needs help because of a physical incapacity—that is blindness, inability to read, or anything of that nature—or if he needs help, for example, to find out the details of his address or to check his nationality status or something of that kind. I agree that there is perhaps a grey area between mental and physical incapacity, and I give the undertaking that we shall consult on ways of making our guidance in this respect as detailed and helpful as possible. However, it is important to have the non-assistance test. If that were removed, as sub-amendment(a)suggests, there would be no test of competence, and I believe that most people wish there to be a test of competence.

Mr. Ennals: Why should there be a test of competence for people who live in one type of hospital, when people who may be suffering from the same mental condition do not have that test, or people who live in the community with the same mental condition do not have that test?

Mr. Mayhew: That is a perfectly fair point. It remains an anomaly in the structure which the schedule will

provide. It forms part of the judgment which the Government have had to make of the best way of responding to the reasonable apprehensions in the community, of which the hon. Member for Newcastle upon Tyne, East spoke. I do not say that it is the only solution, the only package that can be provided. I only say that in our judgment, and using our best endeavours to meet the spirit of the amendment, it is the right package and it is what is needed.
The hon. Member for Birmingham, Stechford (Mr. Davis) spoke in great detail, and I respect the care that he has taken. However, he has fallen into error in a number of instances. I shall try briefly, out of respect for the care he took, to deal with the points that he raised. The hon. Gentleman said that we might be denying the vote to those detained in establishments other than mental or psychiatric hospitals or that we might be denying a vote that was available to someone who was already detained. Present law states that a detained patient cannot be registered. If he is detained after registration, he cannot vote in practice, because there is no provision for him to receive a postal ballot.
4.45 am
The hon. Gentleman listed some practical difficulties. He said that there is no test of capacity to vote for anyone else, but that we are creating a test of capacity for the voluntary mental patient. However, one cannot appear on the register if one suffers from a legal incapacity to vote, for example, if one is an idiot or a person of unsound mind. That is the test for registration. If the electoral registration officer puts such a person on the register and his decision is wrong, it can be challenged if necessary in the courts. It is a common law test that is out of date and very difficult to apply, which is why it is supplanted in the proposals.
The hon. Gentleman said that no one else must have his application attested, but that is also wrong, because Service declarations must be attested. Here we are following the existing provisions for Service voters. The hon. Gentleman said that "no assistance" is a condition, but I have already dealt with that.
The hon. Gentleman then referred to voting by post and asked why those people must apply to vote by post as distinct from their annual declaration in respect of each election. Again, it is a matter of judgment. There is no provision in electoral law for postal voters to be sent a reminder when an election comes round. An elector is either on the permanent list of absent voters, for example, because he has a physical disability that prevents him from attending the polling station, or he must apply at each election in which he wishes to vote. However, we cannot assume that patients will be resident at the same hospital when there is an election as they were when the declaration was made, or that they will still be in hospital. Our amendments give the vote to a group of people whom, we are assured, actively wish to exercise it. We can be confident that if they wish to exercise their electoral rights, it will be rare that an opportunity to do so is lost. They can notify the registration officer when they make their declaration that they wish to receive voting papers whenever there is an election during the currency of that registration.
The hon. Gentleman asked whether patients would be entered on the register as "other voters" and without an address, in which case they would not receive literature and would not know the basis on which the election was


fought. It will be open to the registration officer to list them as "other voters" and without an address, but it will also be open to the election candidates to ensure that the patients receive election literature, because the registration officer will know the address of the hospital. Each elector is entitled to receive an election address and the problem can be readily solved.
As to the definition of a patient, a voluntary mental patient is defined as a mental hospital patient who is not liable to be detained there by virtue of an enactment. The expression "patient" is not defined and the interpretation in section 147 of the Mental Health Act 1959 is not applied. That ensures that the new arrangements are not limited to patients who are suffering or appearing to suffer from mental disorder. Electoral registration officers and hospital authorities will be advised that a mental hospital resident who is not a detained patient or a member of staff is entitled, subject to the other provisions of the schedule, to make a declaration. I apologise for the length of my reply, but I owe it to the hon. Members who made such interesting points.
We intend to consult political parties, registration officers and health authorities about the best way to draw up guidance for all concerned for dealing with their responsibilities under the regulations. We hope that we shall achieve a balance between electoral entitlement and the interests of the community by ensuring that rights are sensibly conferred.

Amendment agreed to.

Clause 60

CONSULTATION WITH MEMBERS OF OTHER PROFESSIONS

Amendment proposed: No. 69, in page 40, line 16, leave out clause 60.—[ Mr. Mayhew.]
Question put, That the amendment be made:—
The House divided: Ayes 103, Noes 20.

Division No. 310]
[4.50 am


AYES


Alexander, Richard
Dunn, Robert(Dartford)


Alison, Rt Hon Michael
Faith, Mrs Sheila


Ancram, Michael
Finsberg, Geoffrey


Aspinwall, Jack
Garel-Jones, Tristan


Atkinson, David(B'm'th,E)
Goodhart, Sir Philip


Baker, Nicholas(N Dorset)
Goodhew, Sir Victor


Bendall, Vivian
Gow, Ian


Benyon, Thomas(A'don)
Griffiths, Peter Portsm'th N)


Berry, Hon Anthony
Grist, Ian


Best, Keith
Hampson, Dr Keith


Biggs-Davison, Sir John
Heddle, John


Blackburn, John
Henderson, Barry


Boscawen, Hon Robert
Hooson, Tom


Bottomley, Peter(W'wich W)
Jessel, Toby


Bright, Graham
Jopling, Rt Hon Michael


Brinton, Tim
Lang, Ian


Brooke, Hon Peter
Lester, Jim(Beeston)


Brown, Michael(Brigg &amp; Sc'n)
Lloyd, Peter(Fareham)


Bruce-Gardyne, John
LyelI, Nicholas


Bulmer, Esmond
MacKay, John(Argyll)


Carlisle, John(Luton West)
McNair-Wilson, M.(N'bury)


Chalker, Mrs. Lynda
Major, John


Chapman, Sydney
Marlow, Antony


Clark, Hon A.(PIym'th, S'n)
Mather, Carol


Clarke, Kenneth(Rushcliffe)
Maude, Rt Hon Sir Angus


Cockeram, Eric
Maxwell-Hyslop, Robin


Cope, John
Mayhew, Patrick


Costain, Sir Albert
Mellor, David


Cranborne, Viscount
Meyer, Sir Anthony


Crouch, David
Mills, lain(Meriden)


Dickens, Geoffrey
Moate, Roger


Dover, Denshore
Morrison, Hon C.(Devizes)





Murphy, Christopher
Spicer, Jim(West Dorset)


Neale, Gerrard
Stevens, Martin


Needham, Richard
Stradling Thomas, J.

Neubert, Michael
Taylor, Teddy(S'end E)


Newton, Tony
Temple-Morris, Peter


Osborn, John
Thompson, Donald


Page, John(Harrow, West)
Thorne, Neil(IIford South)


Page, Richard(SW Herts)
Trippier, David


Percival, Sir Ian
van Straubenzee, Sir W.


Price, Sir David(Eestleigh)
Viggers, Peter


Proctor, K. Harvey
Waller, Gary


Raison, Rt Hon Tirrothy
Watson, John


Rathbone, Tim
Wells, Bowen


Renton, Tim
Wells, John(Maidstone)


Rhys Williams, Sir Brandon
Wheeler, John


Roberts, M.(Cardiff NW)
Wickenden, Keith


Rumbold, Mrs A. C. R.
Wolfson, Mark Shaw, Giles(Pudsey)


Shaw, Sir Michael(Scarb')
Tellers for the Ayes:


Shepherd, Colin(Hereford)
Mr. David Hunt and


Smith, Tim(Beacorsfield)
Mr. Archie Hamilton. Speller, Tony




NOES


Bennett, Andrew(StRp't N)
Morris, Rt Hon A.(W'shawe)


Campbell-Savours, Dale
Price, C.(Lewisham W)


Cocks, Rt Hon M.(B'stol S)
Skinner, Dennis


Cryer, Bob
Spearing, Nigel


Davidson, Arthur
Thorne, Stan(Preston South)


Davis, Terry(B'ham, Stechf'd)
Wainwright, E.(Dearne V)


Dean, Joseph(Leeas West)
Welsh, Michael


Dormand, Jack
Winnick, David


Eastham, Ken



Ennals, Rt Hon David
Tellers for the Noes:


Harrison, Rt Hon Walter
Mr. Allen McKay and


Haynes, Frank
Mr. George Morton.

Question accordingly agreed to.

Clause 66

INTERPRETATION AND SUPPLEMENTARY PROVISIONS

Amendments made: No. 77, in page 42, line 15, leave out 'Section 80 of the principal Act' and insert
'Sections 56 and 59 of the principal Act (supplementary provisions for Part IV) shall have effect as if section (Social report) above were contained in Part IV of that Act, section 80 of that Act'.
No. 71, in page 42, line 16, after 'to', insert 
'30, (Information as to hospitals) and'.
No. 90, in page 42, line 28, at end insert
'(f)section 135(2) and (4) (warrants to search for and remove patients);'.
No. 72, in page 42, line 29, at end insert —
'(g)section 141 (protection for acts done in pursuance of the principal Act):'.
No. 81, in page 42, line :35, leave out 'this Act' and insert
'the provisions of this Act other than section 59 and Schedule(Electoral registration and voting in case of voluntary mental patients)'.—[ Mr Geoffrey Finsberg.]

Clause 67

COMMENCEMENT AND TRANSITIONAL PROVISIONS

Amendment made: No. 82, in page 43, line 14, at end insert—
'(5) Section 59 above, Schedule (Electoral registration and voting in case of voluntary mental patients) to this Act and in Schedule 3 to this Ac: the repeal in Schedule 7 to the principal Act and the repeals in :he Mental Health (Scotland) Act 1960 and the Mental Health Act (Northern Ireland) 1961 shall come into force on 1st April 1983. '.—[ Mr Geoffrey Finsberg.]

Clause 68

SHORT TITLE AND EXTENT

Amendment made: No. 101, in page 43, line 20, leave
out from beginning to second 'and' and insert
'Sections 59 and 62(2) above and Schedule (Electoral registration and voting in case of voluntary mental patients) to this Act extend to Scotland and Northern Ireland, sections 33(1) and (2)'.'.—[ Mr. Geoffrey Finsberg.]

New Schedule

ELECTORAL REGISTRATION AND VOTING IN CASE OF VOLUNTARY MENTAL PATIENTS

Interpretation

1. In this Schedule—
the Act of 1949" means the Representation of the People Act 1949;
mental hospital" means any establishment maintained wholly or mainly for the reception and treatment of persons suffering from any form of mental disorder; 
voluntary mental patient" means a person who is a patient in a mental hospital but is not liable to be detained there by virtue of any enactment.
Registration of voluntary mental patients
2.—(1) Subject to sub-paragraph (2) below, a person who on the qualifying date is a voluntary mental patient shall not be entitled to be registered as mentioned in section 8(1) or (2) of the Act of 1949 except in pursuance of a declaration made with reference to that date in accordance with paragraph 3 below.
(2) Sub-paragraph (1) above is without prejudice to the registration of a voluntary mental patient by virtue of his residence at an address other than the mental hospital in which he is a patient in any case in which he would be entitled to be so registered apart from this Schedule.

Patient's declaration

3.—(1) A voluntary mental patient may make a declaration under this paragraph (a "patient's declaration") if he is able to do so without assistance.
(2) A patient's declaration shall be made with a view to registration in the register of electors for a particular year and with reference to the qualifying date for that register.
(3) A patient's declaration shall be made during the twelve months ending with the qualifying date by reference to which it is made but shall not have effect if after it is made and before that date the declarant ceases to be a voluntary mental patient or cancels the declaration.
(4) A patient's declaration may be made by a declarant notwithstanding the fact that by reason of his age he is not yet entitled to vote.
(5) A patient's declaration shall state that it was made by the declarant without assistance and—

(a) the date of the declaration;
(b) that on that date and, unless it is the qualifying date, on the qualifying date next following the declarant is or will be a voluntary mental patient;
(c) the address of the mental hospital in which the declarant is a voluntary mental patient;
(d) the address where the declarant would be resident in the United Kingdom if he were not a voluntary mental patient or, if he cannot give any such address, an address (other than a mental hospital) at which he has resided in the United Kingdom;
(e) that on the date of the declaration the declarant is a Commonwealth citizen or a citizen of the Republic of Ireland; and
(f) whether the declarant had on the date of the declaration attained the age of eighteen year and, if he had not, the date of his birth.
(6) A patient's declaration shall be attested in the prescribed manner.
(7) If a person makes a patient's declaration declaring to more than one address, or makes more than one patient's declaration bearing the same date and declaring to different addresses, the declaration or declarations shall be void.
(8) A patient's declaration may at any time be cancelled by the declarant and, subject to sub-paragraph (7) above, a patient's

declaration bearing a later date shall, without any express cancellation, cancel a declaration bearing an earlier date if it is made with reference to the same qualifying date.
(9) In this paragraph "assistance" does not include assistance necessitated by blindness or other physical incapacity.

Effect of patient's declaration

4.—(1) A voluntary mental patient whose patient's declaration is made with reference to the qualifying date for any register shall be treated in relation to that register

(a) as resident on the qualifying date at the address specified in the declaration pursuant to paragraph 3(5)(d)above;
(b) in the case of registration in Northern Ireland, as resident in Northern Ireland during the whole of the period of three months ending on the qualifying date; and
(c) in any case, until the contrary is proved, as being a Commonwealth citizen or a citizen of the Republic of Ireland of the age appearing from the declaration and as not being subject to any legal incapacity except as so appearing.
(2) Where a patient's declaration appearing to be properly made out and attested is transmitted to the registration officer in the proper manner, the declarant shall, until the contrary is proved, be treated for the purposes of registration as having been from the date of the declaration or such later date, if any, as appears therefrom, and as continuing to be qualified to be registered as an elector.

Local government elections

5.—(1) Subject to sub-paragraph (2) below, no patient's declaration shall be specially made by any person for the purpose of local government elections but any patient's declaration made for the purpose of parliamentary elections shall have effect also for the purpose of local government elections.
(2) A patient's declaration may be made for the purpose of local government elections only by any person who is a peer subject to a legal incapacity to vote at parliamentary elections and, where so made, shall be marked to show that it is available for local government elections only but shall in all other respects be the same as any other patient's declaration.

Offences

6. Section 49 of the Act of 1949 shall have effect in relation to a patient's declaration as it has effect in relation to a service declaration, taking the reference to subsection (2) of section 10 of that Act as a reference to sub-paragraph (1) of paragraph 3 above and the reference to the particulars required by regulations under that section as a reference to the particulars required by sub-paragraph (5) of that paragraph.

Voting by post

7.—(1) A person who is registered by virtue of a patient's declaration may vote by post if he applies to be treated as an absent voter and furnishes an address in the United Kingdom to which a ballot paper is to be sent for the purpose.
(2)The application shall be for a particular election only.
(3)An application to be treated as an absent voter by virtue of this paragraph shall be made to the registration officer and shall be allowed by him if he is satisfied that the applicant is, or will if registered be, entitled under this paragraph to vote as an absent voter.

Supplementary

8. This Schedule and the Act of 1949 shall have effect as if this Schedule were contained in Part I of that Act.'.—[Mr. Geoffrey Finsberg.]
Brought up, and read the First time.
Question put, That the schedule be read a Second time:—
The House divided: Ayes 103, Noes 19.

Division No. 311]
[5.00 am

AYES


Alexander, Richard
Boscawen, Hon Robert


Alison, Rt Hon Michael
Bottom ley, Peter(W'wich W)


Ancram, Michael
Bright, Graham


Aspinwall, Jack
Brinton, Tim


Atkinson, David(B'm'th,E)
Brooke, Hon Peter


Baker, Nicholas(N Dorset)
Brown, Michael(Brigg &amp; Sc'n)


Bendall, Vivian
Bruce-Gardyne, John


Benyon, Thomas(A'don)
Bulmer, Esmond


Berry, Hon Anthony
Carlisle, John(Luton West)


Best, Keith
Chalker, Mrs. Lynda


Biggs-Davison, Sir John
Chapman, Sydney


Blackburn, John
Clark, Hon A.(Plym'th, S'n)






Clarke, Kenneth(Rushcliffe)
Neubert, Michael


Cockeram, Eric
Newton, Tony


Cope, John
Osborn, John


Costain, Sir Albert
Page, John(Harrow, West)


Crouch, David
Page, Richard(SW Herts)


Dickens, Geoffrey
Percival, Sir Ian


Dover, Denshore
Price, Sir David(Eastleigh)


Dunn, Robert(Dartford)
Proctor, K. Harvey


Faith, Mrs Sheila
Raison, Rt Hon Timothy


Finsberg, Geoffrey
Rathbone, Tim


Garel-Jones, Tristan
Renton, Tim


Goodhart, Sir Philip
Rhys Williams, Sir Brandon


Goodhew, Sir Victor
Roberts, M.(Cardiff NW)


Gow, Ian
Rumbold, Mrs A. C. R.


Griffiths, Peter(Portsm'th N)
Shaw, Giles(Pudsey)


Grist, Ian
Shaw, Sir Michael(Scarb)


Hampson, Dr Keith
Shepherd, Colin(Hereford)


Heddle, John
Smith, Tim(Beaconsfield)


Henderson, Barry
Speller, Tony


Hooson, Tom
Spicer, Jim(West Dorset)


Jessel, Toby
Stevens, Martin


Jopling, Rt Hon Michael
Stradling Thomas, J.


Lang, Ian
Taylor, Teddy(S'end E)


Lester, Jim(Beeston)
Temple-Morris, Peter


Lloyd, Peter(Fareham)
Thomas, Mike(Newcastle E)


Lyell, Nicholas
Thompson, Donald


MacKay, John(Argyll)
Thorne, Neil(IIford South)


McNair-Wilson, M.(N'bury)
Trippier, David


Major, John
van Straubenzee, Sir W.


Marlow, Antony
Viggers, Peter


Mather, Carol
Waller, Gary


Maude, Rt Hon Sir Angus
Watson, John


Maxwell-Hyslop, Robin
Wells, Bowen

Mayhew, Patrick
Wells, John(Maidstone)


Mellor, David
Wheeler, John


Meyer, Sir Anthony
Wickenden, Keith


Mills, lain(Meriden)
Wolfson, Mark


Moate, Roger



Morrison, Hon C.(Devizes)
Tellers for the Ayes:


Murphy, Christopher
Mr. David Hunt and


Neale, Gerrard
Mr. Archie Hamilton


Needham, Richard




NOES

Bennett, Andrew(St'kp't N)
Morris, Rt Hon A.(W'shawe)


Campbell-Savours, Dale
Skinner, Dennis


Cocks, Rt Hon M.(B'stol S)
Spearing, Nigel


Cryer, Bob
Thorne, Stan(Preston South)


Davidson, Arthur
Wainwright, E.(Dearne V)


Davis, Terry(B'ham, Stechf'd)
Welsh, Michael


Dean, Joseph(Leeds West)
Winnick, David


Dormand, Jack

Eastham, Ken
Tellers for the Noes:


Ennals, Rt Hon David
Mr. Frank Haynes and


Harrison, Rt Hon Walter
Mr. George Morton.


McKay, Allen(Penistone)

Question accordingly agreed to.
Schedule read a Second time.
Amendment(a)proposed to the proposed schedule, in paragraph 3(1) leave out
'if he is able to do so without assistance.—[Mr. Terry Davis.]
Question put, That the amendment be made:—
The House divided: Ayes 19, Noes 102.

Division No. 312]
[5.15 am


AYES


Bennett, Andrew(St'kp't N)
Morton, George

Campbell-Savours, Dale
Skinner, Dennis


Cocks, Rt Hon M.(B'stol S)
Spearing, Nigel


Cryer, Bob
Thorne, Stan(Preston South)


Davidson, Arthur
Wainwright, E.(Dearne V)


Davis, Terry(B'ham, Stechf'd)
Welsh, Michael


Dean, Joseph(Leeds West )
Winnick, David


Dormand, Jack



Eastham, Ken
Tellers for the Ayes:


Ennals, Rt Hon David
Mr. Frank Haynes and


Harrison, Rt Hon Walter
Mr. Allen McKay.


Morris, Rt Hon A.(W'shawe)






NOES


Alexander, Richard
Mather, Carol


Alison, Rt Hon Michael
Maude, Rt Hon Sir Angus


Ancram, Michael
Maxwell-Hyslop, Robin


Aspinwall, Jack
Mayhew, Patrick


Atkinson, David(B'm'th,E)
Mellor, David


Baker, Nicholas(N Dorset)
Meyer, Sir Anthony


Bendall, Vivian
Mills, lain(Meriden)


Benyon, Thomas(A'don)
Moate, Roger


Berry, Hon Anthony
Morrison, Hon C.(Devizes)


Best, Keith
Murphy, Christopher


Biggs-Davison, Sir John
Neale, Gerrard


Blackburn, John
Needham, Richard


Bottomley, Peter(W'wich W)
Neubert, Michael


Bright, GrahamNewton, Tony


Brinton, Tim
Osborn, John


Brooke, Hon Peter
Page, John(Harrow, West)


Brown, Michael(Brigg &amp; Sc'n)
Page, Richard(SW Harts)


Bulmer, Esmond
Percival, Sir Ian


Carlisle, John(Luton West)
Price, Sir David(Eastleigh)


Chalker, Mrs. Lynda
Proctor, K. Harvey


Chapman, Sydney
Raison, Rt Hon Timothy


Clark, Hon A.(Plym'th, S'n)
Rathbone, Tim


Clarke, Kenneth(Rushcliffe)
Renton, Tim


Cockeram, Eric
Rhys Williams, Sir Brandon


Cope, John
Roberts, M.(Cardiff NW)


Costain, Sir Albert
Rumbold, Mrs A. C. R


Crouch, David
Shaw, Giles(Pudsey)


Dickens, Geoffrey
Shaw, Sir Michael(Scarb )


Dover, Denshore
Shepherd, Colin(Hereford)


Dunn, Robert(Dartford)
Smith, Tim(Beaconsfield)


Faith, Mrs Sheila
Speller, Tony


Finsberg, Geoffrey
Spicer, Jim(West Dorset)


Garel-Jones, Tristan
Stevens, Martin


Goodhart, Sir Philip
Stradling Thomas, J.


Goodhew, Sir Victor
Taylor, Teddy(S'end E)


Gow, Ian
Temple-Morris, Peter


Griffiths, Peter Portsm'th N)
Thomas, Mike(Newcastle E,i


Grist, Ian
Thompson, Donald


Hamilton, Hon A.
Thorne, Neil(IIford South)


Hampson, Dr Keith
Trippier, David


Heddle, John
van Straubenzee, Sir W.


Henderson, Barry
Viggers, Peter


Hooson, Tom
Waller, Gary


Jessel, Toby
Watson, John


Jopling, Rt Hon Michael
Wells, Bowen


Lang, Ian
Wells, John(Maidstone)


Lester, Jim(Beeston)
Wheeler, John


Lloyd, Peter(Fareham)
Wickenden, Keith


Lyell, Nicholas
Wolfson, Mark 


MacKay, John(Argyll)



McNair-Wilson, M.(A"bury)
Tellers for the Noes:


Major, John
Mr. Robert Boscawen and


Marlow, Antony
Mr. David Hunt.

Question accordingly negatived.
Amendment(c)proposed to the proposed schedule, in paragraph 7 leave out subsection (2).—[ Mr. Terry Davis.]
Question put, that the amendment be made:—
The House divided: Ayes 20, Noes 103.

Division 313]
[5.25 am


AYES


Bennett, Andrew(St'kp't N)
Morton, George


Campbell-Savours, Dale
Price, C.(Lewisham W)


Cocks, Rt Hon M.(B'stol S)
Skinner, Dennis


Cryer, Bob
Spearing, Nigel


Davidson, Arthur
Thorne, Stan(Preston South)


Davis, Terry(B'ham, Stechf'd)
Wainwright, E.(Dearne V)


Dean, Joseph(Leeds West)
Welsh, Michael


Dormand, Jack
Winnick, David


Eastham, Ken



Ennals, Rt Hon David
Tellers for the Ayes:


Harrison, Rt Hon Waltar
Mr. Frank Haynes and


Morris, Rt Hon A.(W'shawe)
Mr. Allen McKay.




NOES


Alexander, Richard
Ancram, Michael


Alison, Rt Hon Michael
Aspinwall, Jack






Atkinson, David(B'm'th,E)
Maxwell-Hyslop, Robin


Baker, Nicholas(N Dorset)
Mayhew, Patrick

Bendall, Vivian
Mellor, David

Benyon, Thomas(A'don)
Meyer, Sir Anthony

Berry, Hon Anthony
Mills, lain(Meriden)

Best, Keith
Moate, Roger

Biggs-Davison, Sir John
Morrison, Hon C.(Devizes)

Blackburn, John
Murphy, Christopher

Boscawen, Hon Robert
Neale, Gerrard

Bottomley, Peter(W'wich W)
Needham, Richard

Bright, Graham
Neubert, Michael

Brinton, Tim
Newton, Tony

Brooke, Hon Peter
Osborn, John

Brown, Michael(Brigg &amp; Sc'n)
Page, John(Harrow, West)

Bruce-Gardyne, John
Page, Richard(SW Herts)

Bulmer, Esmond
Percival, Sir Ian

Carlisle, John(Luton West)
Price, Sir David(Eastleigh)

Chalker, Mrs. Lynda
Proctor, K. Harvey

Chapman, Sydney
Raison, Rt Hon Timothy

Clark, Hon A.(Plym'th, S'n)
Rathbone, Tim

Clarke, Kenneth(Rushcliffe)
Renton, Tim

Cockeram, Eric
Rhys Williams, Sir Brandon

Cope, John
Roberts, M.(Cardiff NW)

Costain, Sir Albert
Rumbold, Mrs A. C. R.

Crouch, David
Shaw, Giles(Pudsey)

Dickens, Geoffrey
Shaw, Sir Michael(Scarb')

Dover, Denshore
Shepherd, Colin(Hereford)

Dunn, Robert(Dartford)
Smith, Tim(Beaconsfield)

Faith, Mrs Sheila
Speller, Tony

Finsberg, Geoffrey
Spicer, Jim(West Dorset)

Garel-Jones, Tristan
Stevens, Martin

Goodhart, Sir Philip
Stradling Thomas, J.

Goodhew, Sir Victor
Taylor, Teddy(S'end E)

Gow, Ian
Temple-Morris, Peter

Griffiths, Peter Portsm'th N)
Thomas, Mike(Newcastle E)

Grist, Ian
Thompson, Donald

Hamilton, Hon A
Thorne, Neil(IIford South)

Hampson, Dr Keith
Trippier, David

Heddle, Johnvan Straubenzee, Sir W.

Henderson, Barry
Viggers, Peter

Hooson, Tom
Waller, Gary

Jessel, Toby
Watson, John

Jopling, Rt Hon Michael
Wells, Bowen

Lester, Jim(Beeston)
Wells, John(Maidstone)


Lloyd, Peter(Fareham)
Wheeler, John


Lyell, Nicholas
Wickenden, Keith


MacKay, John(Argyll)
Wolfson, Mark


McNair-Wilson, M.(N'bury)



Major, John
Tellers for the Ayes:


Marlow, Antony
Mr. David Hunt and


Mather, Carol
Mr. Ian Lang.


Maude, Rt Hon Sir Angus

Question accordingly negatived.
Schedule added to the Bill.

Schedule 2

CONSEQUENTIAL AMENDMENTS

Amendments made: No. 102, in page 52, line 9, at end insert—
'(a)in subsection (2)(a)for the words "an order or direction under any enactment in this Act restricting his discharge" there shall be substituted the words "a restriction order or restriction direction under any enactment in this Act" ;'.

No. 103, in page 52, line 20, at end insert—
'(a)in subsection (2)(a)for the words "an order or direction under any enactment in this Act restricting his discharge" there shall be substituted the words "a restriction order or restriction direction under any enactment in this Act";'.

No. 78, in page 53, line 44, at end insert—

'(a)in paragraph 12(3) for the words from the beginning to "that sub-paragraph" there shall be substituted the words "Any such patient as is mentioned in paragraph 9(3)(b)of this Schedule".'.

No. 104, in page 54, line 42, after 'direction', insert 'under the corresponding enactment in force in England and Wales'.
No. 79, in page 58, line 3, at end insert—
'The Local Authority Social Services Act 1970

44. At the end of Schedule 1 there shall be inserted—
Mental Health (Amendment Act 1982 (c. ) Section (Social report) Social report on patient admitted on application of nearest relative.

Section 47 After-care of detained patients.

Section 58 Appointment of approved social

workers.".'.

No. 92, in page 58, line 3, at end insert—
'The Children and Young Persons Act 1969

44. In section 2(10) for the words "the court may make an interim order in respect of him" there shall be substituted the words "the court may make—

(a)an interim order; or
(b)an interim hospital order within the meaning of section 30 of the Mental Health (Amendment) Act 1982,
in respect of him; but an order shall not be made in respect of the relevant infant in pursuance of paragraph(b)of this subsection unless the conditions which, under the said section 30, are required to be satisfied for the making of an interim hospital order in respect of a person convicted as mentioned in that section are satisfied in his case so far as they are applicable.".'.

No. 93, in page 58, line 4, at end insert—
'44. In section 3(7) after "1959" there shall be inserted the words ", an interim hospital order under section 30 of the Mental Health (Amendment) Act 1982".'.

No. 94, in page 59, line 37, leave out '30 or 35' and insert 'or 30'.

No. 74, in page 61, line 28, leave out 'subsection (1)' and insert 'subsections (1) and (1C)'.—[ Mr. Kenneth Clarke.]

Schedule 3

REPEALS

Amendment made, No. 95, in page 64, line 11, at end insert—

In Schedule 7, in Part II, the entry relating to the Representation of the People Act 1949.

8 &amp; 9 Eliz. 2 c.61
The Mental Health In Schedule 4,(Scotland) Act 1906
In Schedule 4, the entry relating to the Representation of the People Act 1949.


1961c.15 (N.I)
The Mental Health In Act (Northern Ireland) 1961.
In Schedule Ȕ paragraph Ȕ —[Kenneth Clarke.]

Motion made and Question, That the Bill be now read the Third time, put forthwith pursuant to Standing Order No. 56 (Third Reading), and agreed to.

Bill accordingly read the Third time and passed, with amendments.

INSURANCE COMPANIES BILL [LORDS]

Read a Second time.
Bill committed to a Committee of the whole House.—[Mr. Thompson.]
Committee this day.

Selection of Jurors

Motion made, and Question proposed, That this House do now adjourn.—[Mr. David Hunt.]

Mr. Neil Thorne: I am particularly pleased to see my hon. and learned Friend the Solicitor-General in his place to respond to my Adjournment debate on the administration of justice in respect of the selection of jurors. He knows that I have now been concerned with the matter of jury service for well over a year. As well as to him, I have been making representations to our hon. and learned Friend the Minister of State, Home Office about a number of points that I feel are seriously undermining the present system.
The basis of trial by jury in this country is thought to go back nearly a thousand years. It is certainly traceable as far back as the twelfth century. However, as one would expect, the form has changed over the years. Originally, it was intended as trial by one's peers, and subsequently, when voters' lists were introduced, it became trial by those who had a local business interest, either as the owner of a property or as the tenant for premises exceeding a certain rateable value, or were head of the family.
In due course, the list of those eligible was extended to include all voters on the list, which at the time was for those of 21 years and over, but now includes all over 18, unless the person concerned is excluded by virtue of their occupation or has served a prison sentence of three months or more within the past five years. Those who have served 10 years or more are excluded for life.
Undoubtedly the growth in crime and the availability of legal aid, which has risen from less than £½ million per annum 10 years ago to £112 million per annum today, have dramatically increased the number of cases, as is also illustrated by the increase in the number of practising. banisters, which now numbers 10 times the total of 1950. All this means that the burden of jury service has correspondingly increased. However, due account has not been taken of the effect it has had on serving jurors and, as a consequence, conditions have deteriorated and the system has become much more liable to jury rigging.
When the present system was last revised, suspended sentences had not been introduced and therefore it is now possible for a person convicted of an offence today, to be sentenced to 12 months' imprisonment suspended for two years, and, because none of the sentence is served in prison, for that same convicted person to be back in court the following day quite legally sitting on a jury and trying a similar case.
This tends to undermine the whole concept of jury service to such an extent that even those imprisoned do not seem to be fully aware of the rules and have appeared as members of juries. Peter Burden and Tim Miles of theDaily Mailearlier this year reported that a robbery trial was halted when a shocked prison warder recognised Mr. John Warner of Coventry sitting in the jury box. He did not think that his total of 15 years in gaol disqualified him from the job and failed to mention his convictions on the official form. Even after 13 sentences, he said that he saw nothing on the form to disqualify him from jury service because he had been to prison.
Do the forms need revision to make the position clear? If not, are the current penalties adequate? I have a constant stream of letters, and constituents calling at my advice

bureau to complain about their jury service at the Snaresbrook Crown court. In the local Ilford (Redbridge) Recorder on 17 January 1982, Bill Stock reported on "The Crooks who Walk Free". He stated that senior policemen had expressed concern at the high percentage of defendants who walk free after trials at Snaresbrook Crown court. More than half the defendants pleading not guilty are acquitted, according to figures kept by court authorities. The figures prompt concern that police time and public money are being wasted because of the attitude of jurors. In 1980, over 54 per cent. of trials there ended with defendants being cleared. The national average is 50 per cent. Many local police officers whose more serious cases go to Snaresbrook have expressed concern about the number of acquittals and fear they are not getting adequate support from the courts.
We might well ask ourselves why the public attitude evinced by these jurors is thought to be anti-police. Is it because the growth of traffic offences causes a greater opportunity for confrontation between the people and the police to the extent that it creates a "Them and Us" attitude, more people these days identifying themselves with the accused than would have been the case in days gone by? Perhaps the fixed-term traffic penalty system will help to reduce this trend, but it must be a top priority for all in authority in the police to ensure a better relationship between their subordinates and the public so that when a policeman gives evidence in court, it will not be coloured by a juryman's personal experiences and prejudices.
Are we treating jurors in a way that will encourage them to give of their best? Frequent complaints I receive include that of jurors being regularly rejected by defence counsel without explanation when wearing a collar and tie one week and being deemed acceptable the following week in sweater and jeans. Is it not time that counsel should be made to give a reason to the judge as to why a juror who has been summoned for jury service is considered unacceptable? Do we pay our jurors enough to compensate them for their du:y? Is £19 a day enough for the first 10 working days? How many self-employed or managerial staff can afford to take time off from their business at that price?
If it is true that many of those called for service cannot adequately read or write, it is surely essential to have the assistance of these business people, who will otherwise do everything they can to claim exemption on hardship grounds because they consider this duty a waste of time and money. These people surely deserve the £38 a day for the whole of their service and not just for the period after the first 10 days. Those in the 18 to 21 age bracket should be entitled to request release from jury service as it is pointless to press into service those who feel that they are not up to the task and who have no interest in what they are doing.
Are not jurors entitled to adequate facilities to fulfil their responsibilities? It is all very well removing the jury box from the sight of the public gallery to reduce the risk of jury-rigging. What about jury rooms and refreshment facilities? Are we ensuring that these are brought up to a modern and acceptable standard, which will encourage those serving to believe that they are not being treated in an offhand and cavalier fashion because they are required, by law, to do their duty as conscripted men and women?


Will they tell their friends how appalled they are with their experience and encourage others to find any excuse to avoid a similar fate?
Some say that the jury system has had its day and suggest radical alternatives such as professional, full-time jurors who are legally qualified. The present system has much to commend it. It has stood the test of time. With suitable alteration, it can be made to serve as well again. Will my hon. and learned Friend grasp the nettle and take those steps that can rejuvenate the good and root out the bad and breathe new life into a system capable of carrying the criminal law into the twenty-first century?

The Solicitor-General (Sir Ian Percival): My hon. Friend the Member for Ilford, South (Mr. Thorne) is to be congratulated on raising this important topic. I do not agree with all the points that he made, but we are at one in our wish to protect and maintain trial by jury in contested cases of serious criminal charges. Anything that reflects adversely on the quality of trial by jury is a threat to the institution itself, and my hon. Friend does us all a service by drawing attention to possible weaknesses.
I shall try to say something specific about the main points raised by my hon. Friend. The first was the disqualification of jurors. That is a matter for my right hon. Friend the Home Secretary, but my hon. Friend will know that the Government share his view that those with criminal convictions should not, except on minor offences, be eligible to serve as jurors. In March, the Home Secretary announced that he intended to bring forward proposals to extend disqualification to all those convicted of an imprisonable offence in the past 10 years.
We had hoped to do that in the Administration of Justice Bill, but we decided to stay our hand after some Opposition Members had threatened to wreck the Bill if we went ahead. It remains our intention to bring forward proposals on those lines at the earliest opportunity. My hon. Friend will realise that their precise nature requires careful consideration and he will not expect me to be more specific tonight. I assure him that the Government take a serious view of the need to preserve the integrity of the jury system and that we are firm in our intention to take any necessary action to that end.
My hon. Friend referred to the case of a Mr. Warner who served on a jury despite the fact that he had numerous convictions. Two elements contribute to such a circumstance. One is the conditions for disqualification and the other is finding out whether they are satisfied. My hon. Friend will know that two new clauses to the Administration of Justice Bill, which we shall be debating tomorrow, would make a significant contribution on the second of those aspects.
I am not able to agree with my hon. Friend's comments on the Crown court at Snaresbrook. The position can be exaggerated in a misleading way. In general, it is not possible to draw valid conclusions about the administration of justice, whether in the conduct of prosecution and defence, the ability of a judge or the quality of a jury, from statistics relating to the disposal of cases. Circumstances vary too widely from one part of the country to another for comparisons to have any real meaning. Even so, if it were true that in an area the size of London there was one court in which jurors were invariably reluctant to convict, one

would suppose that the result could be shown up by comparing the proportion of defendants acquitted in the various centres.
Last year, 52·5 per cent. of defendants who pleaded guilty on all counts were acquitted in London as a whole. The acquittal rate at Snaresbrook was 55 per cent.—not significantly different. In the first seven months of this year the acquittal rate in London as a whole was 51·77 per cent., whereas at Snaresbrook it was 50·14 per cent.—less than the average and less than all but two other centres in London. That appears to be an improvement.
I know that my hon. Friend is aware of the figures, but lest anyone else be misled into thinking that less than half of those who come before the courts are acquitted, I should stress that the 55 per cent. relates to those who plead not guilty. A large percentage at Crown courts plead guilty. Those who are acquitted are about 50 per cent. of those who plead not guilty, which is rather less than 50 per cent. of all who are charged.
My hon. Friend suggested that there is a danger that antipathy towards the police may have a significant effect on the conduct of jurors. His concern is that jurors may be anti-police, not because they have themselves been convicted of serious offences, such as would disqualify them, but because, as he put it, the police are too heavy-handed in their treatment of minor offences. He referred in particular to motoring offences.
I agree that there must be such a danger. It cannot be quantified, and the degree to which it exists must always be uncertain. However, some matters that are relevant to this part of my hon. Friend's argument are certain and on them I am sure we can all agree. I am sure that he would agree that, although some do not, the vast majority of our people rightly hold the police in high regard. That is of great importance in every sphere, not least the one of which my hon. Friend speaks this evening. To function effectively, the police need the active support of the whole community. I assure my hon. Friend that chief officers of police are fully aware of the vital need to gain and carry that support, and that the development of better arrangements for liaison and dialogue with the community they serve play an important part in carrying forward that process.
My hon. Friend was critical of the present allowances for loss of earnings and other expenses. I know that he is aware of the facts and figures, but perhaps they bear repeating. The most important allowance is that for financial loss, usually loss of earnings, incurred in the course of jury service. As he rightly said, the maximum allowance is at present £19 a day for the first 10 days, and thereafter £38 a day. Naturally, one would like that allowance to be increased so that people who lose more than that are recompensed. However, it is worth noting that those allowances are tax-free, and thus represent a more generous compensation because the juryman is being recompensed for loss of taxable income a tax-free allowance. Jurors are also entitled to receive a subsistence allowance, which has recently been increased to £2·15. If a juryman has to remain overnight, there is a night subsistence allowance of £37·85 in London and £32·65 elsewhere. Jurors also receive travelling expenses. The full cost of travelling by public transport is paid, and if they travel by motor car there is payment at the public service rate of 12·7p per mile.
The rates are reviewed every year. The financial loss allowance, which is settled in consultation with the TUC,


is based on the national average earnings. The subsistence allowances are reviewed in accordance with costs shown in the retail price index of meals bought and consumed outside the home and with increases in hotel expenses. The travelling allowances for motor cars are based on the Automobile Association's report of running costs and the fares element in the retail price index.
In addition, it is worth noting that the allowances are paid not only to jurors but to all those who perform unpaid public duties, such as justices of the peace and witnesses in criminal trials. One would wish to pay more handsome expenses, but a limit must be set on payments from public funds. As the allowances are tax-free, they are more generous than at first appears.
It is fair to pray in aid the fact that jury service is an important public duty and that it falls relatively infrequently on the individual. Where jury service would, despite the allowances, lead to serious financial hardship, the courts will always regard sympathetically an application to be excused. I recall the case of a self-employed man who could not look to his employer to make up any loss, as many employers do. A greengrocer came to me about 10 days before Christmas and said that he had been called for jury service the next week, which would be disastrous because it was one of the busiest weeks of the year. His service was postponed without difficulty and I found that the under-sheriff was easily persuaded that it would cause serious hardship to that man.
There is no evidence that the present allowances operate as a serious disincentive to performing jury service. They are not a cause of frequent complaint, which is a tribute to those called to be jurors, who recognise that they are performing a public service. But a check shows that the Lord Chancellor received no more than seven letters during the past year, four of them from Members of the House, expressing dissatisfaction about the allowances. I hope that, in the light of those facts, my hon. Friend will accept that there are adequate arrangements for reviewing the allowances on a more sensible and practical basis, that the rates are set at a level that enables the majority of jurors to perform an important service without

undue financial hardship and that those who have the task of fixing the allowances are doing their best to balance the relevant interests.
My hon. Friend raised detailed points about the person called for jury service who cannot read or write. There may be short cases with no documents where it does not matter, but where there are many documents in a case, I assure my hon. Friend that it is common for a judge to be on the alert to see whether a jury member cannot read the oath. If it came to his attention that a person could not read or write, that would be a reason for such a person being asked to stand down.
I agree with my hon. Friend's comment on the need to provide adequate facilities, such as jury rooms and refreshment areas. It is important that adequate provision is made for all those who take part in trials—witnesses as well as jurors. Al .l too often, those who become involved in a case find themselves in a dim and dingy building with nowhere to sit arid no refreshment facilities. It has been realised for a long time that that can be detrimental to the administration of justice. Once bitten, twice shy. People subjected to such conditions say that they will never again become involved
I can assure my hon. Friend that I have seen conditions from the other side. The need to do as he suggests is recognised, not simply to make conditions better, but because the proper administration of justice demands that we provide proper facilities. That takes time and is expensive. We have some old court houses, I am happy to say that the Lord Chancellor frequently opens new buildings and considerable strides are being made in improving the old buildings.
Because of the hour and the limit on my time I have hurried through 1:he various aspects to say something specific about as many points as possible. I am pleased that the subject has been raised. I hope that the public will be reassured by my hon. Friend's interest and persistence and by the Government sharing his concern. We are determined to do all that is necessary to protect and maintain the integrity of trial by jury.

Question put and agreed to.

Adjourned accordingly al two minutes past Six o'clock am.